6  .3  ./u 


01  \¥  <S¥alagirttl 


PRINCETON,  N.J. 


\ 


BV  764  .U54  W44  1911 
White,  Edwin  Augustine, 

1856-1925. 
American  church  law 


JUN    3  1914 


AMERICAN 

CHURCH    LAW 


A  GUIDE 

AND   MANUAL   FOR    RECTORS,  WARDENS, 

AND  VESTRYMEN 


THE  PROTESTANT  EPISCOPAL  CHURCH  IN 
THE  UNITED  STATES  OF  AMERICA 


New  Edition,  Thoroughly  Revised  and  Brought  into 

Harmony  with  the  Constitution  and  Canons  of   1910 

and  the   Statute  Laws   and   Canons  of    the   Several 

States  and  Dioceses 


By  the  Reverend 

EDWIN  AUGUSTINE 'WHITE,  D.CL. 

Presbyter  of  the  Diocese  of  Newark 
Sometime  Attorney  and  Counsellor-at-Law 


NEW  YORK 
EDWIN  S.  GORHAM,  Publisher 

37  East  28th  Street 
1911 


PREFACE  TO  THE  NEW  EDITION. 

IN  sending  forth  the  Second  Edition  of  American  Church  Law 
I  cannot  forbear  to  express  my  thanks  to  the  many  Bishops, 
Clergy  and  Laymen  of  the  Church  for  their  kind  recognition 
of  this  effort  to  give  them  an  exposition  of  their  legal  rights  and 
duties.  Since  the  publication  of  the  First  Edition,  the  Constitution 
and  Canons  of  the  General  Convention  have  undergone  a  radical 
revision.  Many  changes  have  also  been  made  in  the  Constitution 
and  Canons  of  the  several  Dioceses,  and  in  the  Statute  Laws 
affecting  the  Church,  of  the  various  States.  The  present  Edition 
has  been  thoroughly  revised  and  corrected  to  conform  to  these 
changes.  E.  A.  W. 

Easter-tide,  191  i. 


Copyright,  1898, 

BY 

JAMES  POTT  &  COMPANY. 
Copyright,  1911, 

BY 

EDWIN  S.   GORHAM. 


PREFACE. 

IT  IS  not  without  some  hesitation  that  the  author  presents  this 
work  to  his  brethren  of  the  Church.  Its  appearance  is  due  to 
the  request  of  many  of  both  clergy  and  laity,  and  to  their 
representations  that  the  information  it  contains  has  long  been 
needed. 

The  object  of  this  book  is  two-fold  :  First,  to  trace  the  continuity 
of  the  Church,  known  as  "  the  Protestant  Episcopal  Church  in  the 
United  States  of  America,"  with  the  "  Church  of  England " ;  to 
show  that  the  Church  in  America  is  no  new  creation,  formed  by 
the  Convention  of  1789,  but  that  she  is  the  same  identical  body 
formerly  known  as  the  Church  of  England  in  the  Colonies,  "  the 
change  of  name  being  only  a  dictate  of  the  change  of  circum- 
stances" ;  that,  as  she  professes  the  same  doctrine,  and  engages  in 
the  same  worship,  so  doth  she  hold  to  the  same  discipline  with 
the  Church  of  England ;  and  that  the  English  Ecclesiastical  Law 
is  of  force  in  the  American  Church  to-day,  so  far  as  it  is  applicable 
to  our  circumstances,  and  not  superseded  by  positive  enactments 
of  our  own. 

Second,  To  give  the  Law  of  the  Church  in  America,  with  cita- 
tions of  authorities,  civil  and  ecclesiastical. 

For  this  purpose,  the  author  has  deemed  it  advisable  to  divide 
the  work  into  two  parts.  Part  I.,  "  Sources  and  Sanctions  of  Amer- 
ican Church  Law,"  includes  the  first  object  of  the  work.  Part  II., 
"  The  Law  of  the  Church,"  includes  the  second  object. 

The  author  has  not  endeavored  to  set  forth  a  complete  compen- 
dium of  the  whole  Law  of  the  Church,  only  of  that  portion  which 
relates  to  the  rights  and  duties  of  Rectors,  Wardens  and  Vestry- 
men in  their  joint  and  several  relations,  and  to  the  proper  conduct 
of  parochial  matters. 

In  interpreting  the  law,  and  applying  the  decisions  of  the  courts 
and  the  opinions  of  authorities  to  propositions  stated,  the  author 
has  sought  to  be  guided  by  the  principles  which  were  once  familiar 


4  LAW  OF  THE  CHURCH. 

to  him  as  a  practising  lawyer,  and  which,  he  trusts,  he  has  not 
entirely  forgotten.  Conscious,  however,  of  his  liability  to  err  in 
judgment,  he  has  submitted  his  manuscript  to  an  able  jurist  among 
the  laity,  learned  also  in  Ecclesiastical  Law,  and  much  of  it  to  one  of 
the  most  learned  of  the  clergy  of  the  Church,  and  availed  himself 
of  their  suggestions. 

The  reader  will,  of  course,  understand  that  by  the  "  American 
Church  "  in  the  following  pages  is  meant  the  "  Protestant  Episcopal 
Church  in  the  United  States  of  America " ;  the  title  "  American 
Church  "  being  used  simply  for  brevity,  and  to  avoid  the  constant 
repetition  of  one  that  is  awkward  and  cumbersome. 

By  request  of  a  number  of  the  clergy,  the  author  has  added  a  sup- 
plement, containing  certain  "  Rules  of  Order,"  with  explanations  of 
the  same,  which  he  trusts  may  prove  helpful  to  the  Rectors  of  Par- 
ishes in  the  conduct  of  Parish  and  Vestry  meetings. 

Appendices,  containing  certain  forms  required  for  different  pur- 
poses by  the  General  or  Diocesan  Canons  of  the  Church,  have  also 
been  added.  The  author  has  refrained  from  inserting  any  forms  re- 
quired by  the  Statute  Law,  as  such  forms  are  so  materially  variant 
in  the  different  States  as  to  render  it  impossible  to  set  forth  any  that 
would  be  of  practical  value  in  any  considerable  number  of  Dioceses. 

The  services  of  one  learned  in  legal  lore  should,  in  most  cases, 
be  employed  in  the  drawing  up  of  statutory  forms. 

The  author  trusts  that  this  work  may  not  only  be  found  useful 
as  a  guide  and  authority  for  Rectors,  Wardens  and  Vestrymen  in 
the  various  matters  with  which  they  may  have  to  deal,  but  also 
that  it  may  serve  as  an  educator  for  Churchmen  concerning  the 
principles  and  laws  of  their  Church. 

In  conclusion,  the  author  desires  to  express  to  the  secretaries  of 
the  several  Diocesan  Conventions  his  appreciation  of  their  kindness 
in  furnishing  him  with  copies  of  the  Constitutions  and  Canons  of 
their  respective  Dioceses. 

E.  A.  W. 
Christ  Church  Rectory, 

Bloomneld,  New  Jersey,  June,  1898. 


CONTENTS. 

PARTI. 

Sources  and  Sanctions  of  American  Church  Law* 

CHAPTER  I. 

OF   THE   ENGLISH    ECCLESIASTICAL   LAW. 

PAGE 

Statement  of  the  four  Codes  or  systems  of  laws  and  regula- 
tions, which  admittedly  govern  the  Church 15 

Statement  of  claim  that  a  fifth  Code,  viz.,  The  English  Eccles- 
iastical Law,  is  also  in  force  in  the  American  Church,  so 
far  as  it  is  applicable  and  not  superseded  by  enactments 
of  our  own 15 

Statement  of  three  propositions  regarding  the  English  Eccles- 
iastical Law.  1st.  That  it  was  the  Law  of  the  Church  in 
the  Colonies  up  to  the  time  of  the  Revolution,  1775.  2d. 
That  it  was  the  Law  of  the  Church  during  the  Revolu- 
tionary War,  and  after  the  war,  up  to  the  holding  of  the 
first  complete  Convention  of  the  Church  in  1789.  3d. 
Tha<t  it  continued  to  be  the  Law  of  the  Church  after  1789 
and  remains  the  Law  of  the  Church  to-day,  so  far  as  it  is 
applicable  and  not  superseded  by  enactments  of  our  own.     16 

Question  considered,  How  much  of  the  English  Law,  Common 

and  Statute,  the  Colonists  brought  with  them 17 

Laws  or  Codes  of  Law  the  subjects  of  inheritance 18 

Common  Law  of  England,  the  birthright  of  the  Colonists 19 

Common  and  Statute  Law  of  England,  the  Common  Law  of 
the  Colonists 21 

Development  of  English  Ecclesiastical  Law  during  five  periods 
— British  period   to  597 — Anglo-Saxon  period   to   1066— 


6  LAW  OF  THE  CHURCH. 

Anglo-Roman  period  to  Reformation — Anglican  period  to 

time  of  Colonization  of  America 23 

Date  of  Colonization 33 

The  English  Ecclesiastical  Law  in  force  at  time  of  Coloniza- 
tion      34 

A  Common   Law   Ecclesiastical,    forming   part   of   the   great 

body  of  Common  Law 37 

CHAPTER  II. 

OF  THE   ENGLISH   ECCLESIASTICAL  LAW   IN  THE   COLONIES  AND 
THE   STATES   PRIOR   TO    I789. 

Common  Law  Ecclesiastical,  and  Canon  Law  of  the  Church  of 

England,  part  of  the  Common  Law  of  the  Colonies 40 

Church  of  England  in  the  Colonies.  First  proposition,  That  the 
English  Ecclesiastical  Law  was  the  Law  of  the  Church  in 
the  Colonies  up  to  the  time  of  the  Revolution 42 

Colonial    legislation    relating  to  the  Church  in  the   different 

Colonies 43 

Relation  of  the  Society  for  the  Propagation  of  the  Gospel  in 

Foreign  Parts  to  the  Colonial  Church. 46 

Bishop  of  London,  Diocesan  of  the  Colonial  Church.  His  juris- 
diction acknowledged  and  recognized 47 

Colonial  Church  identical  with  Church  of  England  and  gov- 
erned by  English  Ecclesiastical  Law 50 

Consideration  of  second  proposition,  That  the  English  Ecclesias- 
tical Law  was  the  law  of  the  Church  during  the  Revolu 
tion  and  thereafter  until  1789 51 

Continuity  of  the  Church's  identity.  Citati  ns  of  historical 
facts  and  authorities,  showing  the  mind  of  the  Church  re- 
garding her  identity 52 


CONTENTS.  7 

An  undeniable  proposition  stated.  Deductions  therefrom 
proving  continued  identity  of  the  Church  with  the  Church 
of  England  and  that  it  continued  to  be  governed  by  the 
English  Ecclesiastical  Law  up  to  1789 58 


CHAPTER  III. 

OF  THE   ENGLISH   ECCLESIASTICAL   LAW   IN   THE   STATES 
SUBSEQUENT   TO    1 789. 

Action    taken   by   the  Churches  in    the  several   States   for  a 

union  thereof 64 

The  Conventions  of  1789  and  1792,  their  authority,  aims  and 

enactments 75 

The  American    Church   after  1789   essentially  identical  and 

continuous  with  the  Church  of  England 86 

Consideration  of  the  third  proposition,  That  the  English  Eccles- 
iastical Law  continued  to  be  a  part  of  the  Law  of  the 
American  Church  after  1789,  and  remains  a  part  of  the 
Law  to-day,  so  far  as  it  is  applicable  and  not  superseded  by 
enactments  of  our  own 92 

Intent  of  the  Church  as  to  the  continuing  force  and  obligation 

of  the  English  Ecclesiastical  Law 92 

Concordat  of  the  American  Church  with  the  Church  of  Eng- 
land in  order  to  have  American  Bishops  consecrated  in 
England 96 

The  Common  Law,  the  Law  of  the  several  States.  Argu- 
ment stated 104 

Argument  from  propositions  proven  as  to  the  continuous  and 

binding  force  of  English  Ecclesiastical  Law 104 

Citation  of  authorities,  and  opinions  of  the  courts  as  to  the 


8  LAW  OF  THE  CHURCH. 

continuing  force  and  obligation  of  the  English  Ecclesias- 
tical Law  in  the  American  Church 106 

Conclusions  derived  from  preceding  investigations no 


PART  H. 
The  Law  of  the  American  Church. 

CHAPTER  I. 

OF  INCORPORATION   OF   CHURCHES. 

Purpose  and  benefits  of  Incorporation 117 

Statutory  and  Canonical  requirements  for  Incorporation 118 

Notice  to  be  given.     How,  when  and  where 120 

Place  of  meeting 121 

Requirements  for  valid  meeting.     Quorum.     Officers 121 

Scope  of  meeting 123 

Who  may  vote 124 

Conduct  of  election,  and  qualifications  of  officers 125 

Certificate  of  election 126 

Terms  of  officers  elected 129 

When  Incorporation  complete 129 

CHAPTER  II. 
OF  ANNUAL   PARISH  MEETINGS. 

When  and  where  held 131 

Requirements  of  notice 131 

Purpose  of  meeting.     What  questions  may  be  considered 13a 


CONTENTS.  9 

Quorum 134 

Presiding  officer  of  meeting  ;  his  rights  and  duties 135 

Qualifications  of  voters 139 

Qualifications  of  Wardens  and  Vestrymen 145 

Certificate  of  election 148 

Special    Parish    meetings  ;  when   necessary  ;  how  called   and 

conducted , 149 

Name  of  Parish,  how  changed 151 


CHAPTER  III. 

OF    THE   VESTRY. 

Component  parts 153 

Their  powers  ;  how  derived,  and  how  construed 154 

Their  custody  of  the  real  estate  of  the  Corporation 157 

Must  act  in  their  corporate  capacity 161 

The  extent  of  their  power  over  the  Church  buildings 162 

Pews  and  pewholders 164 

Their  custody  of  the  Church  revenues 165 

By-laws 167 

Their  power  to  elect  a  Rector 168 

Not  an  Exclusive  Power 175 

Extent  of  their  power  in  the  selection  of  organist,  members  of 

the  choir,  etc 179 

In  absence  of  Statute  Law,  cannot  alienate  Church  property 

without  consent  of  Rector 182 

Vacancies  in  a  vestry,  how  filled 186 

Change  in  number  of  Vestrymen,  how  made 187 


io  LA  W  OF  THE  CHURCH. 

CHAPTER  IV. 

OF   VESTRY   MEETINGS. 

By  whom  called 190 

Notice;  how  given  and  when 191 

When  meeting  legal  without  notice 192 

Quorum.     Presence  of  each  of  three  integral  parts  necessary.  193 

Presiding  officer  ;  his  rights  and  duties 197 

Casting  vote 199 

Business  ;  how  conducted 202 

When  meetings  legal  without  presence  of  Rector 204 

CHAPTER  V. 

OF  THE   RECTOR. 

His  election  and  call 207 

Letters  of  Transfer 209 

A  qualified  Minister 211 

Bishop's  consent  necessary  before  election  valid 211 

Office  of  Institution  discussed.     Powers  of  Rector  thereunder.   223 

Is  called  for  life 2^0 

Dissolution  of  Rectorship 241 

Right  to  a  hearing  before  Rectorship  can  be  terminated 245 

Trial  of  a  Clergyman 252 

An  integral  part  of  the  Vestry 254 

Right  to  call  Parish  and  Vestry  meetings 254 

Presiding  officer  at  Parish  and  Vestry  meetings 255 

Right  to  vote,  and  give  casting  vote  in  case  of  tie 255 

Right  to  decide  as  to  qualifications  of  voters 255 

Right  to  the  keys  and  control  of  the  church  and  other  parish 

buildings 256 


CONTENTS.  ii 

Exclusive  control  over  the  services  of  the  Church 264 

Control  over  the  music  of  the  Church 267 

His  right  to  appoint  the  organist  and  members  of  the  choir...  270 

Control  of  the  organ 274 

Control  over  the  ornaments  of  the  Church 275 

His  right  to  repel  from  the  Holy  Communion 279 

His  right  to  appoint  Assistant  Minister 285 

The  Rector's  duties 286 

CHAPTER  VI. 

OF   WARDENS  AND   VESTRYMEN. 

Brief  history  of  the  office  and  duties  of  Church  Warden  in  the 

Church  of  England 289 

Duties  of  Wardens 295 

Qualifications  of  Wardens 299 

How  appointed 299 

Wardens   must   act    together ;    no   power    separately    unless 

specially  delegated 302 

Have  the  custody  of  the  Church  under  the  Rector 304 

Vestrymen 306 

Qualifications  of  Vestrymen 307 

Have  no  power  as  separate  members  of  the  Vestry  ;  can  only 

act  in  Vestry  assembled 307 

Duties  of  Vestrymen 308 

SUPPLEMENT. 

WITH   RULES   OF   ORDER. 

Rules  of  Order  for  the  proper  Conduct  of  Parish    and  Vestry 

Meetings 313 


t2  LAW  OF  THE  CHURCH. 

APPENDICES. 
WITH   FORMS. 

A.  Forms  for  the  Incorporation  of  Churches 321 

B.  Forms  of  Notice  of  Annual  Elections 323 

C.  Forms  relating  to  the  Election  of  Wardens  and  Vestrymen  324 

D.  Forms  of  Certificate  of  Lay  Deputies  to  Diocesan  Conven- 

tions   326 

E.  Forms  relating  to  the  Transfer  of  real  Church  Property....  327 

F.  Forms  for  Organizing  Missions  and  Parishes 329 

G.  Forms  for  Postulants  and  Candidates  for  Holy  Orders 333 

H.  Miscellaneous  Forms 344 

TABLE  OF  CASES 349 

INDEX 355 


PART  ONE. 

Zhc  Sources  ant)  Sanctions  of 
Hmerican  Cburcb  Xaw, 


CHAPTER  I. 

OF  THE  ENGLISH  ECCLESIASTICAL  LAW. 

IT  IS  necessary  that  we  first  come  to  a  clear  under- 
standing as  to  what  constitutes  the  laws  and  reg- 
ulations for  the  government  of  the  Church,  before 
proceeding  to  apply  those  laws  and  regulations  to  par- 
ticular cases. 

It  may  be  assumed,  as  beyond  question,  that  there 
are  at  least  these  lour  systems  or  codes  of  law  to  which 
the  Protestant  Episcopal  Church  in  the  United  States 
of  America  is  subject,  and  by  which  it  is  governed: 

First.  The  Book  of  Common  Prayer,  its  Rubrics,  and, 
in  some  particulars,  the  Articles. 

Second.  The  Constitution  and  Canons  of  the  Church,  as 
set  forth  and  established  by  the  General  Conven- 
tion. 

Third.  The  Constitution  and  Canons  of  the  Church  in 
the  several  dioceses,  of  force  only  in  the  respective 
dioceses,  and  subordinate  to  the  authority  of  the 
General  Convention. 

Fourth.  "  The  Civil  laws  of  the  States  affecting  the 
Church  and  its  members,  in  regard  to  corporate  and 
personal  rights,  civil  privileges,  and  the  acquisition 
and  preservation  of  property." 
To  these  four  codes,  to  which  the  Church  is  admit- 
tedly subject,  should  be  added,  in  the  opinion  of  most 

of  our  canonists,  a 

Fifth.  The  English  Ecclesiastical  Law  in  force  at  the 
time  of  the  colonization  of  America,  so  far  as  it  is  ap- 


16  LA  W  OF  THE  CHURCH. 

plicable  to  our  condition  and  circumstances,and  not 
superseded  by  enactments  of  our  own,  forming  the 
Common  Law  of  the  Church  in  the  United  States. 

This  opinion  is  controverted  by  a  few  canonists,  who 
take  the  position  "  that  no  part  of  the  English  Eccles- 
iastical Law  is,  or  ever  has  been,  as  such,  of  binding 
obligation  "  in  the  American  Church. 

There  is  no  question  as  to  the  binding  obligation 
upon  the  Church  of  the  first  four  Codes  of  Law  above 
stated  :  the  only  question  is,  as  to  the  force  and  oper- 
ation of  the  English  Ecclesiastical  Law  upon  the 
Church  in  the  United  States,  but  a  most  important 
question,  for  upon  the  accepted  answer  thereto  de- 
pends the  character  of  our  whole  system  of  Ecclesias- 
tical jurisprudence. 

In  my  judgment,  the  only  answer  that  can  be  given 
to  this  question,  the  only  answer  that  is  morally,  his- 
torically and  legally  correct,  is  an  affirmative  one  ;  that 
the  Ecclesiastical  Law  of  England,  in  force  at  the  time 
of  the  colonization  of  America,  is,  so  far  as  it  is  appli- 
cable to  our  condition  and  circumstances,  and  not  su- 
perseded by  enactments  of  our  own,  of  force  and  obli- 
gation in  our  Church  to-day. 

Firm  in  this  belief,  I  shall  seek  to  prove,  by  cita- 
tions from  the  opinions  of  men  learned  in  legal  lore, 
from  the  decisions  of  our  highest  courts,  both  State 
and  National,  from  the  opinions  of  individual  Bishops, 
and  of  the  House  of  Bishops,  and  from  the  declara- 
tions of  the  Church  herself  in  General  Convention  as- 
sembled, that  the  Ecclesiastical  Law  of  England,  with 
certain  modifications,  was  the  law  of  the  Church  in 
the  Colonies  up  to  the  time  of  their  separation  from 
the  mother  country  in    1776;  that  it  was  the  law  of 


ENGLISH  ECCLESIASTICAL  LAW.  17 

the  Church  during  the  Revolutionary  War,  and  there- 
after, until  179,  when  the  Church,  complete  in  her 
three  orders  of  the  ministry,  came  into  possession  of 
all  the  constituent  elements  of  a  Church,  and  first  as- 
sumed the  form  and  character  of  a  National  Church  ; 
and  that  it  was  then,  thereafter,  and  still  continues  to  be, 
the  law  of  the  American  Church,  so  far  as  it  is  adapted 
to  our  circumstances  and  not  superseded  by  legislation 
of  our  own. 

In  order  to  fully  appreciate  the  arguments,  both 
for  and  against  the  position  that  the  American  Church 
is  or  has  been  under  the  government  of  English 
Church  Law,  or  any  portion  thereof,  it  will  be  neces- 
sary to  first  consider  briefly  the  question,  as  to  how 
much,  if  any,  of  the  Common  Law  of  England,  to- 
gether with  the  Statute  Law  thereof,  in  force  at  the 
time  of  the  emigration  of  the  Colonists,  they  brought 
with  them  to  this  country.  The  analogies  of  the 
Common  Law  of  the  State  have  so  important  a  bear- 
ing upon  the  Ecclesiastical  Common  Law  as  to  make 
such  a  consideration  imperative. 

Judge  Hoffman  in  his  "Law  of  the  Church"  {p.  14) 
lays  down  what  he  calls  an  admitted  maxim,  "  that  the 
great  body  of  the  Common  Law  of  England,  and  of  its 
Statute  Law,  so  far  as  adapted  to  the  situation  of  the 
Colonies,  was  brought  to  this  land  from  the  mother 
country,  and  formed  the  basis  of  Colonial  Law."  Un- 
deniable as  this  proposition  seems  to  be,  yet  it  is 
not  admitted  by  some  who  endeavor  to  prove  that 
English  Ecclesiastical  Law  has  no  binding  force  in  the 
American  Church,  and  who  claim  that  neither  a  Na- 
tion nor  a  Church  can  "  inherit  a  law"  ;  that  the  laws 
of  one  Nation  or  Church  can  only  become  the  laws  of 


1 8  LAW  OF  THE  CHURCH. 

another  Nation  or  Church,  though  once  subject  to  that 
Nation  or  Church,  by  "  adoption  or  consent,  either  ex- 
press or  by  such  clear  implication  as  to  be  equivalent  to 
a  legislative  act." 

The  theory,  by  them  advanced,  seems  to  resolve  it- 
self into  some  such  proposition  as  this,  that  a  law  or 
code  of  laws  cannot  pass  by  inheritance  from  one  Na- 
tion or  Church  to  another  Nation  or  Church,  however 
close  their  relations  may  have  been  or  still  may  be. 
Such  a  proposition  I  believe  to  be  untenable,  and  op- 
posed to  the  uniform  opinions  of  our  learned  jurists, 
and  the  decisions  of  our  highest  courts. 

And  first,  what  is  the  meaning  and  scope  of  the  verb 
"  to  inherit" ?  Among  the  definitions  of  the  word  are 
these  :  "  To  get  by  succession  as  the  representative  of 
the  former  possessor";  "  to  receive  as  a  right  or  title 
descendible  by  law  from  an  ancestor  at  his  decease"  ; 
"to  receive  by  transmission  in  any  way";  "to  have 
imparted  to,  or  conferred  upon  "  ;  "  to  acquire  from  any 
source";  "to  possess";  "to  enjoy";  "to  become 
possessed  of"  ;  "  to  take  as  a  possession  by  gift  or  di- 
vine appropriation." 

"  Inheritance  "  is  also  defined  as  "a  possession  re- 
ceived by  gift  or  without  purchase,  a  permanent  posses- 
sion." "  Possession,  ownership,  acquisition,"  "a birth- 
right, a  right  to  which  one  is  entitled  by  birth." 
"  Birthright "  is  defined  as  "any  right  or  privilege  to 
which  a  person  is  entitled  by  birth,  such  as  an  estate 
descendible  by  law  to  an  heir,  or  civil  liberty  under  a 
free  constitution."  It  "  is  applicable  to  any  right 
which  results  from  descent."  From  these  definitions 
it  follows  that  a  right  to  which  we  are  entitled  by 
birth  is  a  birthright. 


ENGLISH  ECCLESIASTICAL  LAW.  i9 

If  we  are  subject  to  a  law,  then  are  we  entitled  to 
receive  whatever  benefits  and  protection  that  law  is  cap- 
able of  bestowing,  and  if  entitled  to  it,  then  is  it  our 
birthright. 

No  one  will  deny  that  the  Colonists  were  subject  to 
the  laws  of  England,  and  therefore  entitled  to  the  ben- 
efits and  protection  of  those  laws ;  but  if  entitled  to 
them,  then  were  those  laws,  including  the  Common  Law, 
their  birthright,  which  they  took  with  them,  as  they 
took  their  nature,  whenever  they  transferred  their  dom- 
icile from  the  mother  country  to  a  daughter  colony 
The  truth  of  this  conclusion,  that  the  Common  Law  of 
England  was  the  birthright  of  the  Colonists,  and  was 
brought  to  America  by  them,  is  well  attested  by  the 
great  commentators  on  law  and  by  the  decisions  of  the 
courts. 

In  his  work  on  the  Constitution,  Judge  Story,  one  of 
the  ablest  jurists  this  or  any  other  country  has  pro- 
duced, says  :  "  Ever  since  the  settlement  of  the  Colo- 
nies, the  universal  principle  has  been,  that  the  Com- 
mon Law  is  our  birtliright  and  inheritance,  and  that 
our  ancestors  brought  hither  with  them,  upon  their 
emigration,  all  of  it  which  was  applicable  to  their  situa- 
tion."— (i  Story  on  the  Con.,  $th  Ed.,  Sec.   157.) 

Chancellor  Kent,  in  his  Commentaries  on  American 
Law,  says :  "  It  is  a  principle  in  the  English  Law,  that 
English  subjects  going  to  a  new  and  uninhabited  coun- 
try, carry  with  them,  as  their  birthright,  the  Laws  of 
England  existing  when  the  colonization  takes  place." — 
(1  Kcnfs  Com.,  14th  Ed.,  473,  Note  b.) 

Chancellor  Walworth  in  pronouncing  the  opinion  of 
the  court  in  DeRuyterw.  Trustees  of  St.  Peter's  Church 
(3  Barb.  Chan.  Rep.,  114),  uses  this  language  : 


2o  LA  W  OF  THE  CHURCH. 

"  It  is  a  natural  presumption  and  therefore  adopted 
as  a  rule  of  law,  that  on  the  settlement  of  a  new  terri- 
tory by  a  colony  from  another  country,  and  where  the 
Colonists  continued  subject  to  the  government  of  the 
mother  country,  they  carry  with  them  the  general  laws 
of  that  country  so  far  as  those  laws  are  applicable  to 
the  Colonists  in  their  new  situation,  which  thus  become 
the  unwritten  law  of  the  colony  until  altered  by  com- 
mon consent  or  legislative  enactment." 

Judge  Story,  in  pronouncing  the  opinion  of  the  Su- 
preme Court  of  the  United  States  in  the  Town  of  Paw- 
let  v.  Clark  et  al.  (9  Cranch,  296),  says : 

"Independent,  however,  of  such  a  provision,  we 
take  it  to  be  a  clear  principle  that  the  Common 
Law  in  force  at  the  emigration  of  our  ancestors 
is  deemed  the  IrirtlirigJit  of  the  Colonies,  unless  so 
far  as  it  is  inapplicable  to  their  situation  or  repugnant 
to  their  own  rights  and  privileges."  And  in  the  same 
court,  in  the  case  of  Van  Ness  v.  Packard (2  Peters,  137), 
he  says,  speaking  of  the  Common  Law  of  England, 
"Our  ancestors  brought  with  them  its  general  princi- 
ples, and  claimed  it  as  their  birthright." 

Other  authorities  to  the  same  effect,  might  be  cited 
almost  ad  infinitum,  but  those  already  cited  are  suffi- 
cient to  prove  the  correctness  of  the  propositions 
sought  to  be  proven  thereby,  viz.:  First,  that  laws,  or 
systems  of  laws  are  the  subject  of  inheritance  and 
claimable  by  birthright  ;  second,  that  the  Common 
Law  of  England  was  the  birthright  of  the  Colonists ; 
and  third,  that  they  claimed  this  birthright,  and 
brought  with  them  to  this  country  the  great  body  of 
that  Common  Law  forming  the  basis  of  the  Colonial 
Law. 


ENGLISH  ECCLESIASTICAL  LAW.  21 

The  question  next  arises,  Of  what  did  this  body 
of  Common  Law,  which  the  Colonists  brought  with 
them,  consist  ?  A  question  all  the  more  important  be- 
cause of  its  bearing,  by  analogy,  upon  the  question  to 
be  considered  later,  as  to  the  extent,  if  any,  of  the 
force  and  obligation  of  the  Canon  Law  of  England, 
(as  part  of  the  Ecclesiastical  Law  thereof)  upon  the 
American  Church. 

No  better  definition  of  Common  Law  can  be  given 
than  Judge  Blackstone  gives  in  his  Commentaries, 
which  are  universally  recognized  as  of  the  highest  au- 
thority. He  says  :  "  The  lex  non  scrlpta,  or  unwritten 
law,  includes  not  only  general  customs,  or  the  Common 
Law,  properly  so  called,  but  also  the  particular  customs 
of  certain  parts  of  the  kingdom;  and  likewise  those 
particular  laws  that  are  by  custom  observed  only  in 
certain  courts  and  jurisdictions.  .  .  .  The  monu- 
ments and  evidences  of  our  legal  customs  are  con- 
tained in  the  records  of  the  several  courts  of  justice,  in 
books  of  reports  and  judicial  systems,  and  in  the  treat- 
ises of  learned  sages  of  the  profession,  preserved  and 
handed  down  to  us  from  the  times  of  highest  anti- 
quity."— {Blackstone  s  Com.  [Hammond's  Ed.~\  166.) 

But  the  body  of  Common  Law,  which  the  Colonists 
inherited,  and  brought  over  with  them  to  this  country, 
consisted  not  alone  of  the  lex  non  scripta,  but  also  of  a 
part  of  the  lex  scripta,  the  Statute  Law  of  England  at 
the  time  of  their  emigration,  "applicable  to  their  sit- 
uation, and  in  amendment  of  the  law."  This  is  a  well- 
established  doctrine,  as  stated  by  Chancellor  Kent :  "It 
is  also  the  established  doctrine  that  English  Statutesf 
passed  before  the  emigration  of  our  ancestors,  and  ap- 
plicable to  our  situation,  and  in  amendment  of  the  law, 


22  LA  W  OF  THE  CHURCH. 

constitute  a  part  of  the  Common  Law  of  this  country." 
— (i  Kent  Com.,  14th  Ed ',  473.) 

The  doctrine  is  also  well-expressed  by  Mr.  West  in 
an  opinion  given  in  1720.  "The  Common  Law  of  Eng- 
land is  the  Common  Law  of  the  Plantations,  and  so  ail 
statutes  in  affirmance  of  the  Common  Law  antecedent 
to  the  settlement  of  a  colony,  unless  there  is  some  pri- 
vate Act  to  the  contrary ;  though  no  statutes  made 
since  those  settlements  are  there  in  force,  unless  the 
colonies  are  particularly  named.  Let  an  Englishman 
go  where  he  will,  he  bears  as  much  of  law  and  liberty 
with  him  as  the  nature  of  things  will  bear." — {Chalmers* 
"  Opinions  of  Eminent  Lawyers"  p.  206.) 

The  first  Continental  Congress  also  claimed  the  ben- 
efit of  this  Statute  Law  of  England  as  Kent  tells  us  in 
his  Commentaries.     He  says  : 

"The  Congress  of  1774  claimed  to  be  entitled  to  the 
benefit,  not  only  of  the  Common  Law  of  England,  but 
of  such  of  the  English  Statutes  as  existed  at  the  time 
of  their  colonization,  and  which  they  had  by  experi- 
ence respectively  found  to  be  applicable  to  their  sev- 
eral local  and  other  circumstances." — {"Journals  of 
Congress,"  October  14,  1774.)  (1  Kent,  14th  Ed.,  473, 
Note  (b)  ) 

The  highest  courts  of  this  country  have  universally 
taken  the  same  view.     Chancellor  Walworth  says  : 

"  The  Common  Law  of  the  mother  country  as  modi- 
fied by  positive  enactments,  together  with  the  Statute 
Laws,  which  are  in  force  at  the  time  of  the  emigration 
of  the  Colonists,  became  in  fact  the  Common  Law 
rather  than  the  Common  and  Statute  Law  of  the  Col- 
ony. The  Statute  Law  of  the  mother  country,  therefore, 
when  introduced  into  the  Colony  of  New  York  by  com- 


ENGLISH  ECCLESIASTICAL  LA  W.  23 

mon  consent,  because  it  was  applicable  to  the  Colo- 
nists in  their  new  situation,  and  not  by  legislative  enact- 
ment, became  a  part  of  the  Common  Law  of  this  prov- 
ince."— (Bogardus  v.  Trinity  Church.  4  Paige  Ch.  Rep., 
178.)  (Cited  and  approved  in  46  N.  Y.  Rep.,  131.) 
(See  also  De  Ruyter  v.  Trustees  et  al.,  3  Bard.  Ch.  Rep., 
119;  Canal  Appraisers  v.  the  People  et  al.,  17  Wend., 
571  :  Humbert  v.  St.  Stephens  Church,  1  Edwards'  Ch. 
Rep.  308  ;  Commonwealth  v.  Leach  et  al.  1  Mass.  60 ; 
Same  v.  Knowlton,  2  Mass.,  534;  Sackett  v.  Sackett,  8 
Pick,  309  ;  Patterson  v.  Winn,  5  Peters,  232  ;  Boehm  v. 
Engle,  1  Dallas,  19.) 

Having-,  in  my  judgment,  established  conclusively 
the  truth  of  the  proposition  that  the  Colonists  brought 
with  them  not  only  the  Common  Law  of  England  but 
also  such  of  the  English  Statutes  as  existed  at  the  time 
of  their  emigration,  and  which  they  had  found  appli- 
cable to  them  in  their  new  situation,  and  observing 
that  such  statutes  formed  a  part  of  the  Common  Law 
of  the  Colonists,  let  us  now  turn  our  attention  to  the 
Ecclesiastical  Law  of  England,  and  observe  what  com- 
posed that  Law  at  the  time  of  the  colonization  of  Amer- 
ica. 

A  brief  review  of  the  history  and  development  of  the 
English  Ecclesiastical  Law  will  help  us  to  a  more  cor- 
rect understanding  as  to  what  constituted  that  Law  at 
the  time  mentioned. 

We  find  fiom  the  decisions  of  the  English  jurists, 
that  even  before  the  landing  of  St.  Augustine  upon  the 
shores  of  Britain,  there  had  grown  up  a  body  of  Com- 
mon Ecclesiastical  Law,  separate  and  distinct  from  the 
Ecclesiastical  Law  that  prevailed  among  the  Churches 
on  the  continent. 


24  LA  W  OF  THE  CHURCH. 

Dawson  in  his  "  Origin  of  Laws"  after  reviewing  the 
history  of  the  Church  in  certain  particulars  in  the  first 
six  centuries,  says  :  "  From  all  which  put  together  and 
well  considered,  these  four  things  are  plain  and  easy  to 
be  observed.  First,  that  the  Britannic  Church  had  its 
ancient  laws  and  customs ;  and,  by  consequence,  had 
an  established  way  and  form  of  government  long  before 
those  days  [the  coming  of  St.  Augustine].  Secondly, 
that  it  was  held  unlawful  for  them  to  change  or  alter 
any  of  these  laws  or  customs  sine  consensu  suorum,  as 
Bede  [expresses  it]  ;  sine  consensu  sues  gentis,  as  Alfred 
[says] ;  and,  by  consequence,  that  all  Ecclesiastical  mat- 
ters were  determined  among  themselves,  and  within  the 
boundaries  of  their  own  Nation,  and  not  in  any  wise  sub- 
ject to  any  Foreign  Power  and  Jurisdiction.  Thirdly, 
that  the  way  which  was  used  by  them,  for  the  determin- 
ing of  such  matters,  was  that  of  a  National  Synod.  And, 
lastly,  that  the  usual  members  of  those  Synods  were 
optimates  suorum,  et  alii  viri  docti,  by  which  we  sup- 
pose to  be  meant  their  bishops  and  other  learned  men 
of  the  clergy ;  because  Bede  tells  us,  in  the  next 
words,  that  when  the  business  about  calling  another 
Synod  was  agreed  on,  there  met  together,  in  a  Synod, 
seven  British  Bishops  and  a  great  many  other  very 
learned  men. — {Book  VI.,  Cap.  4.) 

Augustine,  Abbot  of  St.  Andrew's  in  Rome,  and  the 
representative  of  Pope  Gregory,  arrived  in  Britain 
in  the  year  597,  and  while  he  endeavored  to  bring  the 
British  Church  into  communion  with  the  Roman  Pon- 
tiff, there  is  no  evidence  that  he  made  any  great  or  ma- 
terial change  in  its  ancient  laws  and  customs.  On  the 
contrary,  when  he  wrote  to  Pope  Gregory  complaining 
of  the  divergence   of  customs  in   the   British  Church 


ENGLISH  ECCLESIASTICAL  LA  W.  25 

from  the  Roman  Church,  Gregory  replied,  "  We  are 
not  to  love  customs  on  account  of  the  place  from 
whence  they  come,  but  let  us  love  all  places  where 
good  customs  are  observed.  Choose,  therefore,  from 
every  Church  whatever  is  pious,  religious,  and  well  or- 
dered; and  when  you  have  made  a  bundle  of  good  rules, 
leave  them  for  your  best  legacy  to  the  English." 

A  Synod  of  seven  British  Bishops  met  Augustine  at 
a  place  afterward  called  "Augustine's  Oak,"  A.D.  601. 
He  offered  to  receive  them  into  union  with  the  Roman 
Church  if  they  would  consent  to  three  changes  in  their 
customs,  viz.:  The  celebration  of  Easter  at  the  proper 
time,  the  performance  of  the  Rite  of  Baptism  accord- 
ing to  the  custom  of  the  Roman  Church,  and  join  with 
him  in  preaching  the  Gospel  to  the  English  Nation, 
promising  on  the  part  of  Rome,  "We  will  readily  tol- 
erate all  the  other  things  you  do,  though  contrary  to 
our  customs." 

From  the  time  of  Augustine  down  to  the  Conquest, 
a.d.  1066,  there  is  a  variety  of  original  documents  in 
existence  which  give  us  much  information  as  to  the 
Canons  and  Laws  which  prevailed  during  that  time. 

The  Record  Commission  of  1821,  by  gathering  these 
various  documents  together,  has  thrown  great  light 
upon  the  antiquities  of  English  Law.  The  laws  of  the 
Saxon  kings  are  published  in  a  volume  called  "Ancient 
Institutions  of  England."  A  certain  portion  of  these 
laws  are  called  "  Monumcnta  Ecclesiastical"  and  relate 
in  many  particulars  to  the  affairs  of  the  Church. 
Among  these  Monumenta  is  a  work  called  "  Liber  Pen- 
itentialis  of  Theodore,  Archbishop  of  Canterbury,"  who, 
we  are  told  by  Kemble  in  his  "  Saxons  in  England" 
"was  the  first  Archbishop  whose  authority  was  uni- 


26  LA  W  OF  THE  CHURCH. 

versally  acknowledged  in  England."  It  consisted  of 
"a  full  code  of  regulations  concerning  penance,  made 
in  the  year  669,  and  by  the  authority,  it  would  seem, 
of  the  Archbishop  alone." 

Frequent  Synods,  or  "Gemotes,"  as  Lord  Coke  tells 
us  Synods  were  termed  in  Saxon  times,  were  held  dur- 
ing the  Saxon  period.  Judge  Hoffman  in  "  The  Lata 
of  the  Church"  {pp.  49-53),  mentions  several  of  these 
Gemotes  with  citations  of  their  acts,  and  from  them 
draws  this  conclusion  :  "  From  these  citations  there  is 
ample  reason  to  conclude  that  a  great  principle  of  the 
Saxon  Church  was  that  which  we  find  so  strongly  as- 
serted in  later  times,  viz.:  that  while  the  councils  of 
the  clergy  were  sufficient  to  establish  laws  for  the  gov- 
ernment of  the  clergy,  yet  where  the  laity  were  con- 
cerned, they  must  have  been  passed  or  ratified  by  the 
Witan,  in  which  a  representation  of  that  order  existed." 
To  establish  the  correctness  of  his  conclusion,  that  no 
laws  could  be  passed  binding  upon  the  laity,  unless 
passed  or  ratified  by  some  council  in  which  they  had  a 
representation,  he  cites  the  following: 

"  Even  so  in  the  Saxon  times,  if  there  was  any  sub- 
ject of  laws  for  the  outward  peace  and  temporal  gov- 
ernment of  the  Church,  such  laws  were  properly  or- 
dained by  the  king  and  his  great  council  of  clergy  and 
laity  intermixed,  as  our  Acts  of  Parliament  are  still 
made.  But  if  there  was  any  doctrine  to  be  tried,  or 
any  exercise  of  pure  discipline  to  be  reformed,  then  the 
clergy  of  the  great  Synod  departed  into  a  separate 
Synod,  and  there  acted  as  the  proper  judges ;  only 
when  they  had  thus  provided  for  the  state  of  religion, 
they  brought  their  canons  from  the  Synod  to  the  great 
council,  to  be  ratified  by  the  king  with   the  advice  of 


ENGLISH  ECCLESIASTICAL  LA  W.  27 

his  great  men,  and  so  made  the  constitutions  of  the 
Church  to  be  the  laws  of  the  realm.  And  the  Nor- 
man revolution  made  no  change  in  this  respect.  Thus 
the  case  stood  till  the  Act  of  Submission  of25th  Henry 
VIII." — {Kenneth,  "Ecclesiastical Synods" p.  249.) 

In  the  year  1066,  William  the  Conqueror,  a  Norman, 
ascended  the  throne  of  England.  From  that  time 
down  to  the  Reformation,  the  legislation  of  the  Church 
(exclusive  of  the  Acts  of  Parliament)  is  contained  in  the 
legatine  and  provincial  constitutions. 

The  legatine  constitutions  are  to  be  found  in  the  or- 
dinances of  Otho(A.D.  1237),  and  Othobon  (a.d.  1268); 
the  provincial  constitutions,  in  the  constitutions  of  the 
Archbishops  of  that  period.  Regarding  the  legal  force 
of  these  legatine  constitutions,  Judge  Hoffman  ("Lazv 
of  'the  Church," p.  54)  says:  "There  is  much  reason  to  be- 
lieve that  the  laws  of  the  legates  Otho  and  Othobon 
were  not  regarded  as  obligatory  without  some  recog- 
nition in  the  councils,  or  that  they  had  become  rati- 
fied by  use  and  custom."  Several  authorities  are  cited 
in  support  of  his  conclusion. 

The  history  of  the  period  extending  from  the  time 
of  St.  Augustine,  and  particularly  from  the  ascent  of 
William  the  Conqueror  to  the  throne  of  England,  A.D. 
1066,  down  to  the  Reformation  in  the  reign  of  Henry 
VIII.  during  the  sixteenth  century,  is  a  history  of  the 
gradual  and  continued  efforts  of  the  Popes  to  extend 
the  power  of  the  Roman  Church,  with  its  body  of 
Canon  Law,  over  the  English  Church,  and  the  re- 
peated and  ofttimes  successful  efforts  of  the  English 
Church  against  the  unlawful  encroachments  upon  its 
ancient  rights  and  liberties  as  an  independent  branch 
of  the  Catholic   Church.     The  English  Church  never 


28  LA  W  OF  THE  CHURCH. 

ceased  to  make  most  strenuous  resistance  to  usurped 
power,  and  the  Reformation  was  but  the  effectual  car- 
rying out  of  this  well  settled  policy  of  the  Church,  and 
Henry  VIII.  only  carried  to  completion  what  his  pred- 
ecessors had  begun.  He  simply  exercised  the  right  to 
shake  off  the  usurped  power  of  Rome — a  right  which 
was  his,  because  it  is  a  right  original  and  inalienable; 
a  right  which  the  State  could  not  transfer,  nor  the 
Church  ;tself  suppress. 

While  there  can  be  no  question  as  to  the  ever  con- 
tinuing resistance  of  the  English  Church  to  the  usurpa- 
tions of  Rome,  still,  even  if  she  had  tamely  submitted 
thereto  without  protest,  yet,  because  she  had  once 
been  an  independent  Church,  she  still  possessed  the 
inalienable  right,  whenever  she  chose,  to  throw  off  that 
usurpation.  For  no  lapse  of  centuries  nor  the  assent 
of  successive  generations  could  barter  away  the  rights 
and  liberties  of  a  once  independent  Church.  Usurpa- 
tion, however  long  continued,  is  usurpation  still,  accord- 
ing to  the  old  maxim  of  the  law,  "  Adversus  furem 
cetcrna  and  or  it  as  esto." 

The  several  acts  relating  to  the  Church,  passed  in 
the  reign  of  Henry  VIII.,  did  not  create  any  new 
laws,  "  they  only  restored  and  vindicated  the  old,  and 
recovered  the  ancient  jurisdiction  of  the  Crown  and 
Church  "  It  was,  properly  speaking,  a  period  of  Res- 
toration — (See  4  Blackstonc's  Corn's,  c.  8;  also,  opinions 
of  Cok,'  and  Fitzherbert.) 

Let  us  now  briefly  review  these  acts  of  Henry  VIII. 
which  recovered  to  the  Church  its  ancient  jurisdiction. 
In  the  25th  year  of  Henry  VIII.  an  act  was  passed  for 
the  punishment  of  heresy,  the  preamble  of  which  sets 
forth  "  the  great  grievance  which  the  generality  of  the 


ENGLISH  E  CCLESIA  S  TIC  A  L  LA  W.  29 

words  in  Popish  decrees  and  acts  produced,"  and  states 
"that  the  most  learned  and  expert  man  of  the  realm, 
diligently  lying  in  wait  upon  himself,  cannot  eschew 
and  avoid  the  penalty  and  dangers  of  the  same." 
— {Gibsons  Codex,  Vol.  I.,  p.  3^7.) 

In  the  Act  25  Henry  VIII.,  c.  19  {See  Hoffman's 
"Lazv  of  the  Church"  p.  43),  was  recited  a  declaration  of 
the  clergy,  that "  many  of  the  constitutions,  ordinances 
and  canons,  provincial  or  synodical,  were  contrary 
to  the  laws  and  statutes  of  the  realm,  repugnant  to  the 
king's  prerogatives,  and  onerous  to  the  subject."  In 
Burnett's  "History  of  the  Reformation'  {Vol.  IV.,  pp. 
143-145)  is  a  compilation  of  citations  from  the  body  of 
Canon  Law,  made  by  Archbishop  Cranmer,  to  prove 
their  inconsistency  with  the  laws  of  the  land. 

The  Act  25  Henry  VIII.,  c.  19,  authorized  the  king  to 
appoint  thirty-two  persons  out  of  the  two  Houses  of 
Parliament,  composed  of  an  equal  number  of  clergymen 
and  laymen,  "to  view,  search  and  examine  the  canons, 
constitutions,  ordinances,  provincial  and  synodal, 
theretofore  made,  not  contrarient  or  repugnant  to  the 
laws  and  customs  of  the  realm  and  the  prerogative 
royal."  The  Act  also  provided  that  "such  canons, 
constitutions  and  ordinances  being  already  made  not 
contrarient  or  repugnant  as  aforesaid,  should  be  used 
and  executed  as  they  were  afore  the  making  of  the  Act 
till  such  time  as  they  be  otherwise  ordered  by  such 
thirty-two  persons." 

The  authority  of  the  thirty-two  commissioners,  ap- 
pointed by  the  Act  25  Henry  VIII.,  c.  19,  was  suc- 
cessively renewed  by  Acts  27  Henry  VIII.,  c.  15;  35 
Henry  VIII.,  c.  16,  and  by  the  Act  3  and  4  Edward 
VI.,   c.    11.      Although    the   work    was   compiled,  it 


30  LA  W  OF  THE  CHURCH, 

never  became  a  law,  owing  to  the  death  of  Edward. 
But  the  principle  announced  in  the  statute  creating 
the  commission,  that  "such  canons,  constitutions  and 
ordinances  being  already  made  not  contrarient  or  re- 
pugnant as  aforesaid,  should  be  nsed  and  executed  as 
they  were  afore  the  making  of  the  Act"  became  the 
recognized  law  of  the  land. 

The  "  canons,  constitutions  and  ordinances "  re- 
ferred to  in  the  statute  (25  Henry  VIII.,  c.  19),  were 
chiefly  those  which  composed  the  great  body  of  Eng- 
lish constitutions,  etc.,  and  not  the  laws  prescribed  by 
the  Roman  power.  These  are  referred  to  in  25  Henry 
VIII.,  c.  21,  wherein  it  is  expressly  declared  that 
"  The  realm  of  England  hath  been  and  is  free  from 
subjection  to  any  man's  laws,  but  only  such  as  have 
been  devised,  made  and  obtained  within  this  realm 
for  the  wealth  of  the  same,  or  to  such  other  as,  by  suf- 
ferance of  the  king,  the  people  of  this  realm  have  taken 
by  their  own  consent  to  be  used  among  them,  and 
have  bound  themselves  by  long  use  and  custom  to  the 
observance  of  the  same,  not  as  to  the  observance  of 
any  foreign  prince,  potentate,  or  prelate,  but  as  to  the 
accustomed  and  ancient  laws  of  this  realm,  originally 
established  as  laws  of  the  same  by  the  said  sufferance, 
consent,  and  custom,  and  none  otherwise." — {Hoff- 
man s  "  Lazv  of  the  ChnrcJi"  p.  60.) 

The  authorities  are  well  agreed  that  the  great  body 
of  the  English  constitutions,  etc.,  which  had  formed 
the  law  before  the  Reformation,  continued  to  be  che 
law  after  the  Reformation,  except  those  portions  of  it 
which  were  contrary  and  repugnant  to  the  Common 
Law  or  Statutes  of  the  realm,  together  with  so  much  of 
the  foreign  Canon  Law  as  was  adopted  by  Parliament 


ENGLISH  ECCLESIASTICAL  LAW.  31 

or  the  courts  of  England,  and  also  that  it  continued  to 
be  the  law  of  England,  until  repealed  or  modified  by 
subsequent  legislation.  Spelman,  in  his  treatise  "  De 
Sepultra  "  {p.  179),  says  that  the  Canon  Law  as  adopted 
here — the  national  and  provincial  councils — all  these 
together,  "  as  they  have  been  heretofore  in  use,  and  are 
not  repugnant  to  the  laws  and  religion  of  the  kingdom, 
or  repealed  by  the  statutes  of  Henry  VIII.,  or  of  later 
times  against  papal  usurpation,  are  still  in  force." 

Dale,  in  his  "  Clergyman  s  Legal  Handbook''''  (5/// 
Ed ,p.  4),  says:  "  The  canons  are  Ecclesiastical  Laws, 
consisting  of  (a)  legatine  constitutions  or  ecclesiastical 
laws  made  in  national  synods,  and  (b)  of  provincial  con- 
stitutions, or  decrees  of  provincial  synods.  (See  Reeves' 
''Hist.  Eng.  Lata,"  Vol.  I  ,  p.  66;  and  Burn,  E.  L.,  Pre/., 
p.  22.)  By  25  Henry  VIII.,  c.  19,  and  1  Eliz., 
c.  1,  it  was  enacted  that  the  Canon  Law  should  be  re- 
viewed (which  was  never  done),  and  that  until  such  re- 
view all  canons  then  existing  and  not  repugnant  to 
the  law  of  the  land  or  the  king's  prerogative  should 
still  be  used  and  executed.  Such  canons,  therefore, 
are  binding  on  laity  and  clergy." — (Strange,  1060.) 

In  Caudrys  case($  Coke's  Rep., xxix.),  Lord  Coke  says: 
"  So  albeit  the  kings  of  England  derived  their  Ecclesi- 
astical Laws  from  others,  yet  so  many  as  were  proved, 
approved  and  allowed  herein,  and  with  a  general  con- 
sent, are  aptly  and  rightly  called  che  king's  Ecclesias- 
tical Laws  of  England." 

In  the  case  of  the  commendams  in  Sir  John  Davies* 
Reports  (p.  198),  it  is  stated:  ''A  long  time  before  the 
Canon  Law  was  authorized  and  published  (which  was 
after  the  Norman  Conquest,  as  was  before  shown),  the 
ancient  kings  of  England,  viz.,  Edgar,   Alfred,  etc., 


32  LAW  OF  THE  CHURCH. 

have,  with  the  advice  of  their  clergy  of  the  realm, 
made  divers  ordinances  for  the  government  of  the 
Church  of  England ;  and,  after  the  Conquest,  divers 
provincial  synods  have  been  held,  and  several  constitu- 
tions have  been  made,  in  both  the  realms  of  England 
and  Ireland;  all  which  are  part  of  our  Ecclesiastical 
Laws  at  this  day." 

A  statement  is  made  in  the  earlier  part  of  the  case 
that  the  Canon  Law  therein  referred  to  was  probably 
introduced  into  England  under  Stephen,  about  A.D. 
1 1 50. 

Chief-Justice  Tindale,  in  the  Queen  v.  Millis  (10 
Clarke  and  Finnclly,  67$),  says:  "  I  proceed  in  the 
last  place  to  endeavor  to  show  that  the  law  by  which 
the  spiritual  courts  of  this  kingdom  have,  from  the  ear- 
liest time,  been  governed  and  regulated,  is  not  the 
general  Canon  Lav/  of  Europe,  imported  as  a  body  of 
law  into  this  kingdom,  and  governing  those  courts 
proprio  vigore;  but  instead  thereof  an  Ecclesiastical 
Law,  of  which  the  general  Canon  Law  is  no  doubt  the 
basis,  but  which  has  been  modified  and  altered  from 
time  to  time  by  the  Ecclesiastical  constitutions  of  our 
Archbishops  and  Bishops,  and  by  the  legislature  of 
the  realm,  and  which  has  been  known  from  early  times 
by  the  distinguishing  title  of  the  King's  Ecclesiastical 
Law."  "That  the  Canon  Law  of  Europe  does  not  nor 
never  did,  as  a  body  of  laws,  form  part  of  the  law  of 
England  has  long  been  settled." — {Ibid,  680.) 

Judge  Hoffman  justly  remarks  that  this  opinion 
states  with  great  precision  and  accuracy  the  rule  re- 
garding the  body  of  foreign  Canon  Law. 

Lord  Abinger  in  the  same  case  {p.  745),  speaking 
of  the  Ecclesiastical  Law  of  England,  says  :     "  The 


ENGLISH  ECCLESIASTICAL  LA  IV.  33 

learned  judges  have,  I  think,  satisfactorily  derived  it 
from  the  constitutions  of  the  synods  and  councils  in 
England,  before  the  authority  of  the  Pope  was  ac- 
knowledged in  this  country.  I  take  that  part  only  of 
the  foreign  law  to  be  the  Ecclesiastical  Law  of  Eng- 
land, which  has  been  adopted  by  Parliament  or  the 
courts  of  this  country." 

Sir  Matthew  Hale,  in  his  "History  of  Common  Law" 
{p.  32),  speaking  of "  the  papal  or  imperial  laws,"  which 
obtained  in  England,  says:  "But  their  authority  is 
founded  merely  on  their  being  admitted  and  received 
by  us,  which  alone  gives  them  their  authoritative  es- 
sence and  qualifies  their  obligation." 

These  authorities  (not  to  mention  numerous  others 
to  the  same  effect)  are  surely  sufficient  to  prove  the 
proposition,  which  some  have  disputed,  that  the  foreign 
Canon  Law  was,  in  some  particulars,  in  force  in  Eng- 
land after  the  Reformation.  By  its  own  power  it  had 
no  force,  but  when  incorporated  into  the  Acts  of  Par- 
liament, and  also  when  adopted  by  the  people  of  the 
land,  and  that  adoption  confirmed  by  the  opinions  of 
the  courts,  it  was  of  force  in  England.  It  has  also 
been  used  as  the  basis  of  many  decisions  in  later  times. 
— (See  Alston  v.  Attlay,  7  A.  and  E.,  289;  Burder  v. 
Mayor,  6,  Notes  of  Cases,  Eccl.  and  M.,  1;  and  Stavely 
v.  Ullathorne,  1  Hardres,  10 1;  Blunt 's  Book  Ch  Law, 
p.  20.) 

We  now  come  to  the  consideration  of  the  Ecclesiasti- 
cal legislation  of  the  post-Reformation  period.  For 
the  purpose  of  this  work,  we  need  only  consider  so 
much  of  it  as  was  put  forth  prior  to  the  planting  of  the 
Church  in  the  Colonies.  While  it  is  somewhat  difficult 
to  fix  the  precise  date  thereof,  yet,  as  Judge  Hoffman 


34  LA  W  OF  THE  CHURCH. 

says  :  "  We  cannot  practically  err  if  we  place  this  period 
at  the  date  of  the  royal  charters  to  the  Colonies  re- 
spectively, if  followed  by  a  settlement,  or  the  period 
of  the  first  erection  of  a  church  and  public  worship  in  a 
colony." — ("  Law  of  the  Church"  pp.  60,  61.)  (See  also 
Beat  v.  Fox,  4  Georgia  Rep.,  404;  De  Ruyter  v.  St. 
Peter  s  Church,  3  Barb.  Ch.  Rep.,  119.) 

The  first  ordained  minister  of  the  Church  of  Eng- 
land in  the  Colonies  was  the  Rev.  Robert  Hunt.  He 
embarked  from  England  as  a  missionary  for  Virginia, 
on  the  19th  of  December,  1606,  and  early  in  1^07  held 
the  first  services  of  the  Church  in  the  Colonies. 

The  first  church  was  built  by  him  at  Jamestown 
some  time  in  the  same  year. 

Certainly  no  earlier  date  than  the  year  1607  can  be 
taken  as  the  date  of  the  colonization  of  America  and 
the  establishing  of  the  Church  in  the  Colonies. 

What,  then,  constituted  the  great  body  of  the 
Ecclesiastical  Law  that  was  in  force  in  England  A.D. 
1607  ? 

Besides  the  great  body  of  what  was  known  as  the 
"  King's  Ecclesiastical  Law,"  or  "  Common  Law  Eccles- 
iastical," as  Justice  Whitlock  calls  it,  were  the  canoni- 
cal enactments  of  the  post-Reformation  period  prior  to 
the  year  1607,  which  included  the  statutes  of  Henry 
VIII.,  Edward  VI.,  and  Elizabeth,  the  injunctions  of 
Edward  VI.  and  Elizabeth  in  1547  and  1559,  the  Synod 
of  Archbishop  Parker,  1 571,  the  Articuli  pro  Cleri  of 
1584,  the  Capitula  of  London,  1597,  and  the  canons  of 
1603,  in  the  reign  of  James  I. 

With,  perhaps,  the  exception  of  the  statutes  of 
Henry  VIII  ,  the  most  important  of  these  are  the 
canons  of  1603,  as  they  superseded  the  two  injunctions 


ENGLISH  ECCLESIASTICAL  LAW.  35 

of  Edward  and  Elizabeth,  and  either  superseded  or 
modified  the  other  institutions  above  mentioned. 
Judge  Hoffman,  after  a  most  exhaustive  investigation 
of  the  question  as  to  what  constituted  the  law  of  the 
Church  of  England  at  the  time  of  the  emigration  of  the 
Colonists  to  this  country,  gives  as  the  result  of  his  in- 
vestigations the  following: 

First.  That  the  body  of  the  foreign  Canon  Law  is 
presumptively  without  force  or  authority  in  England  ; 
and  that  in  every  particular  case  where  it  is  sought  to 
render  one  of  its  regulations  available,  the  burthen  of 
proving  that  such  regulation  had  been  adopted  in  Eng- 
land rests  affirmatively  upon  the  party  adducing  it. 

That  the  legatine  constitutions  of  Otho  and 
Othobon  stand  upon  the  same  footing. 

Second.  That  the  provincial  constitutions  have  the 
presumption  of  legality  and  obligation  attending  them  ; 
and  whenever  applicable  to  a  given  case  impose  the 
task  upon  the  adverse  party  of  showing  why  they 
should  not  prevail. 

Third.  That  in  addition  to  these  elements  of  law, 
the  statutes  of  the  realm,  the  decisions  of  the  civil 
tribunals,  the  cases  and  precedents  in  the  spiritual 
courts,  made  up  the  body  of  that  system  of  regulations 
known  as  the  Ecclesiastical  Law  of  England. 

The  comments  and  writings  of  eminent  men  were 
also  sources  of  information  ;  and  all  these,  except  the 
statutes,  formed  the  testimonials  and  witnesses  of  the 
Common  Law  of  the  Church,  in  the  same  manner  as 
similar  records  and  reports  are  the  evidences  of  the 
Common  Law  of  the  realm. 

Fourth.  That  the  Canons  of  1603,  as  well  as  the 
acts  after  the  Reformation,  also  constituted  a  portion 


36  LA  W  OF  THE  CHURCH. 

of  that  law  binding  upon  the  clergy,  but  only  binding 
upon  the  laity  where  admitted  by  long  custom,  or  ex- 
press recognition  of  the  civil  tribunals. 

This,  then,  formed  the  great  body  of  the  English 
Ecclesiastical  Law  when  the  Church  was  planted  in 
this  country;  and  this  constituted  the  body  of  the  Law 
of  the  Church  in  the  Colonies.  Many  modifications 
arose  from  specific  provisions  of  charters,  or  particular 
laws  of  the  Colonial  assemblies,  as  well  as  from  those 
changes  in  the  situation  of  the  people  and  the  usages 
of  the  community,  which  rendered  some  provisions  in- 
compatible or  inapplicable. — ("  Law  of  the  Church? 
pp.  63,  64.) 

Dr.  Blunt,  in  his  " Book  of  Church  Lazv"  {yth  Ed.  , 
revised  by  Sir  Walter  Phillemcre,  D.C.L.,  sums 
up  the  Church  Law  in  force  in  England.  His  con- 
clusions are  in  substantial  agreement  with  Judge  Hoff- 
man's. 

He  says  (/.  25) :  "  To  sum  up,  therefore,  it  may  be 
said,  in  conclusion,  the  following  are  the  several  ele- 
ments of  Church  Law  as  it  is  now  in  force  in  the  Church 
of  England  : 

"  1.  The  Common  Law  of  the  realm. 

"2.  The  English  Canon  Law,  ancient  and  modern, 
so  far  as  it  is  not  opposed  to  the  Common  and  Stat- 
ute Law  or  to  the  royal  prerogative. 

'•  3.  Foreign  Canon  Law,  so  far  as  it  has  been  ac 
cepted  by  custom  or  by  Act  of  Parliament. 

"  4.  The  Statute  Law  of  the  realm,  including  the 
Book  of  Common  Prayer,  with  its  Rubrics  and  the 
XXXIX.  Articles  of  Religion." 

I  have  already  spoken  of  a  "  Common  Law  Ecclesi- 
astical," and  that  even  before  the  landing  of  St.  Augus- 


ENGLISH  £  CCL  ESI4STICAL  LAW.  37 

tine  upon  the  shores  of  Britain,  the  British  Church  pos- 
sessed a  Common  Law  Ecclesiastical  of  her  own. 

The  proposition  that  there  is  a  Common  Law  Eccles- 
iastical, which  holds  the  same  relation  to  the  Church 
as  the  Common  Law  does  to  the  State,  seems  so  self- 
evident  a  proposition  as  to  require  no  proof.  And  yet 
its  truth  has  been  questioned  by  some.  The  proposi- 
tion is  not  that  there  is  a  Common  Law  Ecclesiastical 
wholly  separate  and  distinct  from  the  Common  Law 
of  the  State,  but  that  there  is  a  body  of  the  Common 
Law  which  relates  to  the  Church,  and  is  for  the  regu- 
lation and  the  government  of  Ecclesiastical  matters, 
and  which  is  recognized  as  being  the  Common  Law  of 
the  Church  and  is  known  in  England  as  the  Common 
Law  Ecclesiastical.  It  is  that  portion  of  the  Common 
Law  which  relates  to  the  Church  as  another  portion 
thereof  relates  to  the  State.  Nor  is  it  possible  to  sep- 
arate the  one  entirely  from  the  other ;  they  are  both 
but  parts  of  the  one  great  whole,  known  as  the  Com- 
mon Law,  which  consists  of  Common  Law  relating  to 
the  State  alone,  of  Common  Law  relating  to  the 
Church  alone,  and  of  Common  Law  relating  to  both 
State  and  Church. 

I  cannot  but  feel  that  they  who  question  the  truth 
of  the  proposition  that  there  is  a  Common  Law  Eccles- 
iastical have  not  made  a  careful  and  thorough  study 
of  Ecclesiastical  Law  and  history.  I  have  failed  to 
find  any  of  the  recognized  authorities  on  Ecclesias- 
tical Law  denying  or  questioning  the  proposition.  On 
the  contrary,  they  either  assert  or  assume  it  to  be  true. 

Bishop  Gibson  says : 

"  Common  Latv,  which  (saith  Sir  J.  Davis)  is  nothing 
else  but  the  Common  Law  of  the  realm,  and  (so  he 


38  LA  W  OF  THE  CHURCH. 

adds)  a  custom  which  hath  obtained  the  force  of  law, 
is  always  said  to  be  jus  non  scriptum.  And  as  the 
spiritualty  is  an  essential  part  of  the  English  Consti- 
tution, and  of  a  distinct  nature  and  administration 
from  the  temporalty,  so  hath  it  its  Common  Customs, 
and  jura  non  scripta  as  well  as  the  temporalty.  .  .  . 
And  the  like  ancient  rights,  which  are  not  derived 
from  any  written  laws,  but  (so  far  as  they  are  spiritual 
powers)  have  the  same  original  with  the  order  itself, 
and  (considered  as  branches  of  the  Constitution  of  the. 
Church  of  England)  subsist  upon  ancient  custom  and 
immemorial  practice,  and,  as  subsisting  upon  these, 
may  be  properly  called  the  Common  Law  of  the 
Church." — {Codex,  "Introductory  Discourse"  xxvi.) 

In  the  same  "  Introductory  Discourse  "  he  says:  "  The 
making  of  Common  Law  one  branch  in  the  division  of 
the  laws  of  the  Church  of  England  is  an  immediate 
consequence  of  the  division  of  the  whole  body  into 
spiritualty  and  temporalty,  and  is  no  more,  in  effect, 
than  to  say  that  immemorial  practice,  relating  to  tem- 
poral affairs,  shall  be  in  the  temporal  administration." 
And  again:  "  The  true  notion  of  the  Common  Law  ex- 
tends to  all  those  customs  which  have  obtained  the 
force  of  laws,  although  the  method  of  proceeding  be 
very  different  in  them.  And  I  see  no  reason  why 
those  laws,  which  stand  upon  one  common  bottom,  as 
being  received  by  immemorial  custom,  should  not  pass 
under  the  same  denomination." 

In  another  place  he  says:  "The  rules  of  Common 
and  Canon  Law  are  founded,  not  only  upon  the  judg- 
ment and  opinions  of  the  professors  of  both  Laws,  but 
also  upon  the  practice  of  our  own  Church  and  upon  the 
body  of  the  ancient  Canon  Law." — {Codex,  Preface,  xiv.) 


ENGLISH  ECCLESIASTICAL  LAW.  39 

Justice  Whitlock  states  in  Evers  v.  Owen  {God.  Rep., 
432):  "  There  is  a  Common  Law  Ecclesiastical  as  well 
as  our  Common  Law,  jus  commune  ecclesiasticum  as 
well  as  jus  commune  laicum." 

Bishop  Stillingfleet,  in  his  work  on  "Duties  and 
Rights  of  Parochial  Clergy"  (V.l.  II.,  Dis.  I.),  speaks 
of  the  "ancient  Common  Law  in  this  realm  which  still 
continues  in  force,"  and  then  says  :  "  There  is  a  Common 
Law  Ecclesiastical  which,  although  in  many  things  it 
may  be  t'he  same  as  the  Canon  Law  which  is  read  in 
the  books,  yet  it  hath  not  force  from  any  papal  or 
legatine  constitutions,  but  from  the  acceptance  and 
practice  of  it  in  our  Church." 

Burn,  in  his  great  work  on  "  Ecclesiastical  Law," 
says :  "  The  Ecclesiastical  Law  of  England  is  com- 
pounded of  these  four  main  ingredients — the  Civil  Law, 
the  Canon  Law,  the  Common  Law,  and  the  Statute 
Law."  He  also  says  :  "  Where  these  laws  do  interfere 
and  cross  each  other,  the  order  of  preference  is  this  : 
The  Civil  Law  submitteth  to  the  Canon  Law;  both  of 
these  to  the  Common  Law;  and  all  the  three  to  the  Stat- 
ute Law." — (1  Burns  "Eccl.  Law"  xi.  See,  also,  Hale's 
"  Hist.  Com.  Law,"  27,  32 ;  "  Muscutt  on  Church  Laws" 
19;  Queen  v.  Millis,  10  Clarke  and  Finnelly,  678.) 


CHAPTER  II. 

OF   THE  ENGLISH   ECCLESIASTICAL   LAW  IN   THE  COL- 
ONIES AND   IN   THE   STATES    PRIOR   TO    1789. 

HAVING  clearly  established,  in  my  judgment, 
the  truth  of  the  proposition  that  there  is  a 
Common  Law  Ecclesiastical,  and  that  it  is  a 
part  of,  and  included  in,  the  whole  great  bod}'-  of  what 
is  known  as  the  "  Common  Law,"  we  may  next  con- 
sider its  application  to  the  Colonial  Church.  But  it 
will  first  be  necessary  to  recall  to  our  minds  some  of 
the  propositions  hereinbefore  set  forth  and  established. 
We  have  shown  that  laws  and  codes  of  laws  are  proper 
subjects  of  inheritance  and  can  rightly  be  claimed  by 
a  Church  or  Nation  as  its  birthright  ;  that  the  Com- 
mon Law  of  England,  together  with  the  Statute  Law 
of  the  realm,  was  the  birthright  of  the  Colonists  ;  that 
they  claimed  this  birthright,  and  brought  it  with  them 
to  the  shores  of  America,  and  that  it  formed  the  basis 
of  the  Colonial  Law.  We  have  also  shown  that  the 
Common  Law  of  the  Colonists  consisted  of  the  Com- 
mon Law  of  England,  together  with  all  the  Statute 
Law  thereof  in  amendment  of  the  Common  Law,  and 
in  force  at  the  time  of  their  emigration,  so  far  as  it  was 
applicable  to  their  situation  ;  and  that  this  Common 
Law  included  the  Common  Ecclesiastical  Law  of  the 
Church  of  England. 

But  the  Common  Law  of  the  Colonists  included  not 
only  the  Common  Law  Ecclesiastical  of  England,  but 
also  the  Canonical  Law  of  the  Church  ;  for,  as  we  have 


ENGLISH  ECCLESIASTICAL  LAW.  41 

seen,  the  Common  Law  of  the  Colonists  consisted 
not  alone  of  the  lex  non  scripta,  but  also  of  the  lex 
scripta,  the  Statute  Law,  the  positive  enactments  of 
the  mother  country,  and  the  Canonical  Law  was  a  part 
of  that  lex  scripta,  the  Statute  Law,  a  part  of  the  gen- 
eral laws  of  the  mother  country,  and  so  a  part  of  the 
Common  Law  which  the  Colonists  brought  with  them 
to  this  country. 

The  Courts  of  this  country  have  uniformly  taken  this 
view  of  the  Canon  Law  of  England  whenever  the  ques- 
tion has  been  before  them.  In  Crump  v.  Morgan  (3 
Iredell's  Eq.  Rep.,  91,  98),  the  Court  gave  as  their  opin- 
ion that  "the  Canon  and  Civil  Laws,  as  administered 
in  the  Ecclesiastical  Courts  of  England,  are  parts  of 
the  Common  Law,  .  .  .  were  brought  here  by  our 
ancestors  as  parts  of  the  Common  Law,  and  have  been 
adopted  and  used  here  in  all  cases  to  which  they  were 
applicable,  and,  whenever  there  has  been  a  tribunal  ex- 
ercising a  jurisdiction,  to  call  for  their  use." 

The  question  as  to  the  force  of  the  English  Canon 
Law  in  this  country,  so  far  as  it  related  to  testamentary 
causes,  was  considered  by  the  Supreme  Court  of  North 
Carolina,  and  this  opinion  given  :  "Although  the  juris- 
diction be  changed,  the  rule  of  decision  is  not.  The 
Canon  Law  is  a  part  of  the  Common  Law,  so  far  as 
respects  testamentary  causes,  and  except  such  changes 
as  may  have  been  produced  by  statutes.  We  now 
determine  here  what  is  a  good  will  of  personal  prop- 
erty, exactly  upon  the  same  principles  that  prevailed 
when  the  Governor  took  the  probate  of  wills,  or  be- 
fore the  Ecclesiastical  Judge  in  England." — {Gaskins  v. 
Gaskins,  3  Iredell's  Law  Rep.,  158;  see  also  Batter  son 
v.  Thompson,  8  Phil.  Rep.,  251;  Bart  let  t  et.  al.  v.  Hip- 


42  LA  W  OF  THE  CHURCH. 

kins,  j6  Md.,  5  ;  Terrett  et.  al  v.  Taylor  et.  al.,  9 
Cranchy  43;  De  Ruyter  v.  Trustees  et.  al.,  3  Barb.  Ch- 
Rep.,  119;  Canal  Appraisers  v.  People  et.  al.,  17  Wend., 
571 ;  Bogardusv.  Trinity  Church,  4  Paz^  C/2.  i?^>.,  178.) 

We  now  come  to  the  consideration  of  the  relation 
of  the  Church  of  England  to  the  Church  in  the  Colo- 
nies, and  also  to  the  consideration  of  the  first  of  the 
propositions  advanced  in  the  earlier  part  of  the 
preceding  chapter,  viz.:  that  the  Ecclesiastical  Law 
of  England  was  the  Law  of  the  Church  in  the  Colonies 
up  to  the  time  of  their  separation  from  the  mother 
country  in  1775- 

The  proposition  is  not  that  the  Church  of  England 
was  established  as  a  "  State  Church"  in  the  Colonies  (ex- 
cept where,  as  was  the  case  in  some  of  the  Colonies,  it 
was  declared  by  the  Colonial  authority  to  be  the  estab- 
lished Church  of  that  particular  Province),  nor  that  its 
worship  was  enjoined  upon  the  Colonies  ;  but  the  pro- 
position is,  as  Judge  Hoffman  so  clearly  states,  "that 
all  members  of  the  Church  of  England  in  the  Colonies 
were  subject  to  the  Ecclesiastical  Law  of  England,  ex- 
cept where  it  was  expressly  altered  or  necessarily  in- 
applicable." 

While  the  truth  of  this  proposition  is  so  self-evident 
as  to  require  no  proof — probably  will  be  denied  by  no 
one — yet,  for  a  clearer  understanding  thereof  with  its 
true  meanings  and  limitations,  it  will  be  well  to  notice 
various  historical  facts  having  reference  to  and  illus- 
trating the  proposition.  Judge  Hoffman,  in  his  "  Law 
of  the  Church,"  and  Dr.  Hawks,  in  his  "  Contributions 
to  Ecclesiastical  History,"  cite  a  large  number  of  these 
historical  facts,  and  both  are  agreed  as  to  the  truth  of 
the  proposition  advocated. 


ENGLISH  ECCLESIASTICAL  LAW.  43 

First,  let  us  observe  some  of  the  Colonial  legislation 
that  had  a  more  or  less  direct  bearing-  upon  the  Church. 

In  1619  the  Colonial  Assembly  of  Virginia  passed 
an  Act  making  the  religious  establishment  of  England 
to  prevail  in  Virginia.  In  1621-22,  further  provisions 
were  made  regarding  it.  In  1624,  among  other  enact- 
ments relating  to  the  Church  adopted  by  the  Virginia 
Assembly,  was  the  following :  "  That  there  should  be 
an  uniformity  in  the  Church,  as  near  as  might  be,  to 
the  Canons  of  the  Church  of  England,  and  that  all  per- 
sons should  yield  a  ready  obedience  to  them,  upon 
pain  of  censure." — {Hazvks"  "  Con.  to  Ecc.  Hist."  Vol  I., 

A  35-) 

In  1642  was  passed  an  Act  declaring,  "  that  no  min- 
ister should  be  permitted  to  officiate  in  this  country 
but  such  as  shall  produce  to  the  Governor  a  testimon- 
ial that  he  has  received  his  ordination  from  some 
Bishop  in  England,  and  shall  then  subscribe  to  be 
conformable  to  the  Orders  and  Constitutions  of  the 
Church  of  England,  and  the  laws  there  established." — 
{Ibid,  Vol.  I.,  p.  53.) 

In  1662  an  Act  was  passed  prohibiting  any  one  from 
serving  as  a  vestryman  of  the  Church,  "  without  taking 
the  oaths  of  allegiance  and  supremacy,  and  subscribing 
a  declaration  of  conformity  to  the  doctrine  and  disci- 
pline of  the  Church  of  England."  Attendance  upon 
Divine  worship  was  made  compulsory  by  the  same 
Act. — {Hoffmanns  "  Law  of  the  Cliurch" p  21.) 

The  Colony  of  New  York  was  governed  from  1664 
to  1683  by  a  code  of  laws  known  as  the  "  Laws  of  the 
Duke  of  York."  While  it  was  decreed  therein  that 
"  all  the  inhabitants  were  to  bear  their  due  proportion 
of  charges  for  the  support  as  well  of  Church  as  of  the 


44  LA  IV  OF  THE  CHURCH. 

State,"  it  was  not  made  necessary  that  a  minister 
should  be  of  the  Church  of  England  in  order  to  be 
able  to  officiate  or  to  be  inducted  into  a  parish. 

In  1675  a  Court  of  Assizes  was  held  in  New  York, 
and  an  order  made  "  that  the  laws  of  the  government 
be  duly  observed  as  to  parochial  churches,  and  al- 
though divers  persons  may  be  of  different  judgments, 
yet  all  shall  contribute  to  the  minister  established  and 
allowed  of." — {Hoffman's  "Law  of 'the  Church"  p.  18.) 

In  1693,  1695  and  1705,  Acts  relating  to  the  main- 
tenance of  ministers,  etc.,  were  passed  by  the  Colonial 
Assembly  of  New  York,  which  were  repealed  in  1784. 

In  South  Carolina,  Judge  Hoffman  tells  us  [p.  19), 
the  charter  to  the  Earl  of  Clarendon  and  others  gave  to 
them  "  the  advowson  of  all  churches,  chapels  and 
oratories,  and  to  cause  them  to  be  dedicated  accord- 
ing to  the  Ecclesiastical  Law  of  England.  It  con- 
ferred also  the  power  to  dispense  with  conformity  to 
the  Liturgy  and  ceremonies  of  the  Church  and  subscrip- 
tion to  the  Articles."  The  ninety-sixth  of  the  funda- 
mental articles  drawn  up  by  Mr.  Locke  declared 
"  that  the  religion  of  the  Church  of  England  being 
the  only  true  and  orthodox  and  the  national  religion 
of  all  the  king's  domains,  was  also  that  of  Carolina." 

The  ninety-seventh  article  was  in  the  nature  of  a 
Toleration  Act,  and  gave  indulgence  to  Dissenters  to 
form  congregations  and  churches. 

In  1696-97  an  Act  was  passed  granting  liberty  of  con- 
science to  all  Protestants  to  enjoy  full,  free  and  undis- 
turbed liberty  to  exercise  their  worship  according  to 
the  professed  rules  of  their  religion. — {DalcJws  "  Hist. 
ofS.  C'p.31.) 

Judge  Hoffman  cites  from  Da/cho's  "History"  {pp.  32, 


ENGLISH  ECCLESIASTICAL  LA  W.  45 

33)  that  "  in  1698  an  Act  was  passed  for  providing  a 
public  maintenance  of  ,£1 50  per  annum  for  a  minister  in 
Charleston,  payable  out  of  the  public  treasury.  This 
Act  recited  the  provision  of  the  Charter  of  Charles  II., 
that  no  religious  ministry,  except  that  established  by 
law  in  this  kingdom  of  England,  should  have  any  pub- 
lic maintenance." — (uLaza  of 'the  CJuirch"  p.  20.) 

In  1704  the  Assembly  passed  an  Act  requiring  of  all 
members  of  the  "  Commons  House  of  Assembly"  con- 
formity to  the  worship  of  the  Church  of  England. 

"  In  November,  1706,  an  Act  was  passed  supporting 
the  Establishment,  which  continued  to  be  the  law  of 
the  Church  in  that  colony,  with  some  additions  and 
variations,  to  the  time  of  the  Revolution,  and  portions 
of  which,  it  is  understood,  regulate  the  Church  to  this 
day." — ("Law  of  the  Church"  p.  20;  Vestry  et.  al.  v. 
Barksdale,  I  Strob.  Eq.  Rep.,  197.) 

In  Maryland,  the  Colonial  Assembly  passed  an  Act 
in  1696  relating  to  the  Church,  but,  failing  to  receive 
the  royal  assent,  it  did  not  become  the  law  of  the 
Colony.  Another  Act  was  drawn  up  in  England  and 
sent  to  Maryland,  which  became  the  law  of  the  Colony 
in  1702.  "  By  this  law,  every  congregation  and  place 
of  worship,  according  to  the  usage  of  the  Church  of 
England,  for  the  maintenance  of  whose  minister  a  cer- 
tain revenue  or  income  was  directed  by  law  to  be 
raised,  was  to  be  deemed  a  part  of  the  established 
Church."— {Hawks'  "Eccl.  Con."  Vol.  11.,/.  113.)  "It 
may  be  fairly  assumed  that  the  Colonial  Church  was 
subject  to  and  governed  by  this  law  (the  English 
Ecclesiastical  Law),  so  far  as  it  was  applicable  and  was 
consistent  with  the  chartered  rights  of  Lord  Balti- 
more."— (Bartlett  et.  al.  v.  Hipkins,  76  Md.,  5.) 


46  LA  W  OF  THE  CHURCH. 

In  studying  the  history  of  the  Colonial  legislation 
we  must  remember,  as  Judge  Hoffman  states  (//.  16, 
17),  that  "  What  laws  Churchmen  brought  with  them, 
or  submitted  to  for  the  regulation  of  their  spiritual 
and  incidental  secular  relations,  is  a  wholly  different 
question  from  that  of  the  prevalence  of  a  law  regulat- 
ing the  worship  of  every  Colonist." 

It  is  plainly  evident  from  the  history  of  Colonial 
legislation,  that  Parliament  made  little  or  no  provision 
for  the  support  of  the  Church,  and  that  what  provision 
was  made  the  Colonial  Assemblies  themselves  made, 
and  even  when  "  Bishop  Berkeley  had  won  from  a  re- 
luctant Parliament  the  munificent  gift  of  £20,000  to 
found  a  college  for  America,"  we  are  told  that  "  Sir 
Robert  Walpole  interposed  and  plundered  the  fund  to 
swell  the  nuptial  pomp  of  a  princess." 

It  was  not  to  King  or  Parliament,  but  to  "  The 
Society  for  the  Propagation  of  the  Gospel  in  Foreign 
Parts,"  that  the  Church  in  America  owes  a  debt  of 
deepest  gratitude.  That  society  was  incorporated  in 
1701,  and,  in  the  language  of  its  charter,  was  estab- 
lished "  for  the  receiving  and  managing  such  funds  as 
might  be  contributed  for  the  religious  instruction  of 
his  Majesty's  subjects  beyond  the  seas  ;  for  the  main- 
tenance of  clergymen  in  the  plantations,  colonies  and 
factories  of  Great  Britain  ;  and  for  the  general  propa- 
gation of  the  Gospel." 

Judge  Hoffman,  in  referring  to  that  "  beneficent 
body,"  well  says  :  "  The  story  of  its  abundant  labors 
and  countless  blessings  is  a  proper  theme  for  the 
eloquent  pen  of  the  historian  of  the  Church.  Through- 
out its  own  works — throughout  the  late  publications 
in  England  upon  Colonial  annals — are  poured  forth  in 


ENGLISH  ECCLESIASTICAL  LAW.  47 

a  copious  stream  the  memorials  of  its  holy  efforts  and 
their  holy  fruits;  and  when  from  the  thousand  altars 
of  the  Episcopal  Church  the  utterance  of  praise  and 
prayer  arises  in  the  stately,  flowing  language  of  Ed- 
ward, let  us  remember  that  chiefly  to  that  society  we 
owe  the  inappreciable  gift." — ("Law  of  the  Church" 
p.  25.) 

The  Colonial  Churchmen  made  repeated  efforts  to 
obtain  a  Bishop  for  the  Colonies,  or  at  least  some  one 
invested  with  some  of  the  authority  of  a  Diocesan. 

As  early  as  1687  the  Churchmen  of  Maryland  pre- 
sented a  memorial  to  the  Bishop  of  London  in  which 
the  Governor  and  the  Assembly  concurred,  "  to  send 
some  one  invested  with  so  much  of  the  authority  of 
the  Diocesan  as  would  capacitate  to  redress  what  was 
amiss,  and  supply  what  was  wanting  in  the  Church." — 
(Hawks  "  Con.  to  Ecc.  Hist."  Vol.  II.,  p.  81.) 

Commissaries  were  appointed  by  the  Bishop  for 
some  of  the  Colonies  at  different  times,  but  their  re- 
quest for  a  Bishop  was  not  granted. 

"  The  missionaries  of  the  Church  stood  upon  the 
shore  and  beckoned  to  the  descendants  of  the  Apos- 
tles to  come  across.  They  beckoned  ineffectually, 
and  the  cause  of  Episcopacy  trembled  for  many  years 
in  the  struggle  with  dissent." 

The  most  that  they  were  able  to  attain  was  the  ap- 
pointment of  the  Bishop  of  London  as  their  Diocesan, 
and  the  union  of  the  Church  in  the  Colonies  with  the 
see  of  London. 

It  seems  impossible  to  ascertain  by  what  authority 
this  appointment  was  first  made.  We  are  told  by 
Bishop  Wilberforce,  that  on  Bishop  Gibson's  attain- 
ment to  the  see  of  London,  he  was  informed  that  the 


48  LA  W  OF  THE  CHURCH. 

appointment  was  made  by  an  order  of  Council  in  the 
reign  of  Charles  II.,  but  being  unable  to  find  such  an 
order,  he  refused  to  act  as  the  Diocesan  of  the 
Colonies  until  a  commission  was  granted  him  by  the 
Crown.  His  request  was  evidently  granted  some  time 
in  the  year  1723,  as  his  first  act  was  an  address  dated 
in  November  of  that  year. 

Hawkins,  in  his  " Historical  Notices"  {pp.  423,  424), 
says  that  in  the  instructions  to  the  "  Society  for  the 
Propagation  of  the  Gospel,  etc.,"  they  were  directed  to 
wait  upon  the  Bishop  of  London  as  their  Diocesan,  and 
this  authority  over  them  is  recognized  in  the  instruc- 
tions to  one  of  the  Governors  (Lord  Cornbury,  Govern- 
or of  New  York),  as  early  as  1703. 

The  jurisdiction  of  the  Bishop  of  London  over  the 
Colonial  Church  was  generally  recognized,  and  seldom 
ever  questioned.  One  or  two  instances  only,  of  the 
recognition  of  his  Colonial  jurisdiction  need  be  noted. 

In  South  Carolina,  in  1704,  the  Assembly  had  passed 
an  Act  that  was  exceedingly  distasteful  to  Churchmen 
and  Dissenters  alike.  It  provided,  among  other 
things,  for  a  tribunal  of  twenty  laymen,  for  the  judg- 
ing of  Ecclesiastical  cases.  This  was  deemed,  by 
Churchmen,  as  an  invasion  of  the  authority  of  the 
Bishop  of  London,  under  whose  authority  alone  such 
courts  could  be  held.  A  memorial  was  sent  to  the  House 
of  Lords,  in  which  it  was  stated  that  they  were  under 
the  jurisdiction  of  the  Bishop  of  London.  The  House 
of  Lords  voted  an  address  to  the  Queen,  in  which  they 
stated  that  the  provision  of  the  law  establishing  the 
lay  commission  was  "  repugnant  to  the  law  of  the 
realm,  and  destructive  of  the  Constitution  of  the 
Church  of  England."     The  Queen  declared  the  law 


ENGLISH  ECCLESIASTICAL  LAW.  49 

null  and  void,  and  in  November,  1706,  the  Assembly- 
repealed  it. — [Dalchos  "History"  p.  69.) 

In  1 7 14,  the  vestry  of  one  of  the  parishes  in  the  Colony 
of  Maryland  preferred  charges  against  their  clergy  to  the 
Governor.  Finding  that  he  had  no  jurisdiction  over  the 
matter,  as  it  was  an  Ecclesiastical  matter,  he  sent  three 
clergymen  to  inquire  into  the  facts,  "  partly  to  quiet 
the  minds  of  the  complainants,  and  partly  to  ascertain 
facts  which  might  be  laid  before  the  Bishop." — {Hawks' 
" Ecc.  Con."  Vol.  II., //.  140,  141.) 

Judge  Hoffman,  in  commenting  on  this  incident, 
says  :  "  In  this  precedent  we  have  the  theory  of  Ec- 
clesiastical authority  and  the  rule  of  the  Canon  Law 
of  England  observed  so  far  as  it  was  practicable.  By 
that  law  the  Churchwardens  have  the  right,  and  are 
the  proper  persons,  to  lay  a  complaint  before  the  Bishop 
of  the  diocese,  by  whom  it  is  to  be  investigated  and 
determined.  (See  Phillimore 's  Ed.  of 'Burri 's  "Ecc. Law" 
Vol.  I .,/>.  399.)  The  application  to  or  through  the 
Governor  was  a  matter  anomalous,  but  growing  out  of 
his  legal  position.  The  Governor  disclaimed  the  power 
of  judging  a  matter  merely  ecclesiastical,  and  put  the 
parties  in  the  way  of  having  the  facts  laid  before  the 
Bishop."—  ("  Law  of  the  Church"  p.  28.) 

An  attempt  was  made  to  secure  the  passage  by  the 
Maryland  Assembly  of  a  bill  to  bring  the  clergy  under 
the  jurisdiction  of  a  lay  "  Court  for  the  Trial  of  Clergy- 
men." The  Governor  declined  to  give  his  assent  to 
the  bill,  one  of  his  reasons  being  that  "  the  clergy  were 
properly  under  the  jurisdiction  of  the  Bishop  of  Lon- 
don."— {Hawks'  "Ecc.  Con.,"  Vol.  ll.,pp.  179,  180.)  This 
attempt  to  destroy  the  Bishop's  jurisdiction  over  the 
clergy  of  the  Colony  only  resulted  in  strengthening  it. 


5o  LA  W  OF  THE  CHURCH. 

These  historical  facts  which  I  have  adduced  are 
certainly  sufficient  to  prove  the  identity  of  the 
Church  in  the  Colonies  with  the  Church  of  Eng- 
land, from  the  time  of  their  first  settlement  up  to  the 
time  of  their  separation  from  the  mother  country  in 
1776,  and  that  she  was  governed  by  the  same  general 
Ecclesiastical  Law,  modified  somewhat,  indeed,  by  Co- 
lonial customs  and  usages.  She  was  under  the  juris- 
diction of  a  Bishop  of  the  Church  of  England,  and  rec- 
ognized and  acknowledged  that  jurisdiction.  Her  ser- 
vices were  conducted,  and  her  Sacraments  adminis- 
tered, in  every  place,  in  the  words  of  the  Prayer  Book 
of  the  Church  of  England.  She  called  herself,  and  all 
men  recognized  her,  as  the  Church  of  England  in  the 
Colonies. 

The  words  of  Judge  Hoffman  regarding  this  propo- 
sition are  so  true,  and  so  well  chosen,  that  I  quote  them 
at  length.  He  says :  "  I  have  gathered  together  a 
collection  of  facts  and  historical  muniments,  to  show 
the  identity  of  the  Church  of  the  Colonies  with  that  of 
England — to  show  how  thoroughly  she  was  pervaded 
with  the  spirit  of  the  law,  as  well  as  of  the  faith  and 
doctrine  of  that  Church.  In  following  this  inquiry,  it 
can  scarcely  have  escaped  notice,  how  much  that  law 
was  modified  and  influenced  by  our  Colonial  situation, 
usages,  and  jurisprudence.  The  truth  is,  that  a  Com- 
mon Law  had  sprung  up  in  the  Colonies,  the  offspring 
of  their  necessities  and  position,  in  the  same  manner 
as  the  Common  Law  of  England  had  arisen  in  the 
Saxon  ages.  The  latter,  with  wonderful  flexibility, 
had  adapted  itself  to  the  mutations  and  the  progress 
of  successive  centuries.  That  superadded  American 
Common  Law  was  developed  in  usages  and  statutes; 


ENGLISH  ECCLESIASTICAL  LA  W.  51 

and  its  influence  was  felt  in  the  system  of  the  Church, 
as  well  as  in  the  civil  relations  of  the  people." — {"Law 
of  the  Church"  p.  30.) 

The  next  proposition  that  I  will  attempt  to  estab- 
lish is,  that  the  Englisli  Ecclesiastical  Lazv  was  substan- 
tially the  Lazv  of  the  Church  during  the  Revolutionary 
War,  and  thereafter  until  the  year  1789,  when  the 
Church,  complete  in  her  three  orders  of  the  ministry, 
came  into  possession  of  all  the  constituent  elements  of 
an  entire  Church,  and  began  her  separate  existence  as 
that  branch  of  the  Catholic  Church  known  in  law  as 
the  "  Protestant  Episcopal  Church  in  the  United  States 
of  America." 

The  revolution  of  the  Colonies  was  against  the 
State,  not  against  the  Church. 

The  Declaration  of  Independence  by  the  Colonies, 
on  the  Fourth  of  July,  1776,  was  a  Declaration  of  Inde- 
pendence of  the  mother  country,  not  of  the  mother 
Church.  With  her,  the  Church  in  the  Colonies  had  no 
quarrel,  and  resorted  to  no  revolution  against  her. 
"  There  followed  no  disruption  of  her  Catholicity  ;  no 
severance  of  spiritual  ties;  no  overthrow  of  her  appli- 
cable laws"  ;  no  change  in  the  form,  or  in  the  manner 
of  the  administration  of  her  Sacraments. 

She  still  continued  to  use  the  old  and  loved  Prayer 
Book  of  the  Church  of  England.  Her  sons,  the  Com- 
mander-in-Chief, the  officers  and  the  soldiers  of  the 
American  Army  fought  for  independence  from  Eng- 
land, but  not  for  independence  from  the  Church  of 
England  ;  and,  whenever  it  was  possible,  they  at- 
tended the  service  of  the  Church  of  England,  and  wor- 
shipped God  in  the  words  of  the  Church  of  England 
Prayer  Book. 


52  LAW  OF  THE  CHURCH. 

Her  identity  with  the  Church  of  England  continued 
unbroken  through  the  Revolutionary  period,  and 
through  the  post-Revolutionary  period  up  to  the  year 
1789.  Her  priests  and  her  laity  still  remained  loyal 
to  her ;  they  still  named  her  as  the  Church  of  England. 

On  the  day  after  the  Declaration  of  Independence, 
the  Convention  of  Virginia  altered  the  Book  of  Com- 
mon Prayer  to  accommodate  it  to  the  change  of  con- 
dition in  State  affairs.  Judge  Hoffman  tells  us  that 
this  document  is  preserved  in  the  New  York  State 
Library  in  Albany,  and  that  "  it  contains  various  alter- 
ations of  the  service,  almost  exclusively  relating  to 
the  prayers  for  rulers,  and  closes  as  follows :  '  Let 
every  other  sentence  of  the  Litany  be  retained,  without 
any  other  alteration,  except  the  above  sentences  re- 
cited.'"— {"Law  of  the  Church" p.  31.) 

In  1785  (in  Virginia),  it  was  ordered  "that  until  the 
farther  order  of  the  Convention,  the  Liturgy  of  the 
Church  of  England  be  used  in  the  several  Churches 
throughout  this  Commonwealth  with  such  altera- 
tions as  the  American  Revolution  has  rendered  neces- 
sary."— {Perry's  "Journals  of  the  Early  Con.,''  Vol. 
III.,/.  49-) 

In  1783  the  first  Convention  of  Maryland  issued  the 
celebrated  Declaration  of  Fundamental  Rights.  It 
declared  that  the  Church  of  Maryland  possessed  the 
right  to  '•'  complete  and  preserve  herself  as  an  entire 
Church,  agreeably  to  her  ancient  usages  and  posses- 
sions ;  and  to  have  the  full  enjoyment  and  free 
exercise  of  those  purely  spiritual  powers  which  are 
essential  to  the  being  of  every  Church,  independent  of 
any  foreign  or  other  Jurisdiction,  so  far  as  may  be 
consistent  with  the   civil  rights  of  society."     It  was 


ENGLISH  ECCLESIASTICAL  LA  W.  53 

also  declared  that  the  churches,  chapels,  glebes  and 
other  property  formerly  belonging  to  the  Church  of 
England  belonged  to  that  Church  and  were  secured  to 
it  forever.  The  Declaration  closed  with  the  follow- 
ing passage  :  "As  it  is  the  right,  so  it  will  be  the 
duty,  of  the  said  Church,  when  duly  organized,  con- 
stituted and  represented  in  a  Synod  or  Convention  of 
the  different  Orders  of  her  Ministers  and  People,  to 
revise  her  Liturgy,  Forms  of  Prayer  and  Public  Wor- 
ship, in  order  to  adapt  the  same  to  the  late  Revolu- 
tion, and  other  local  circumstances  of  America;  which, 
it  is  humbly  conceived,  may  and  will  be  done  without 
any  other  and  farther  departure  from  the  venerable 
Order  and  beautiful  Forms  of  Worship  of  the  Church 
from  whence  we  sprung,  than  may  be  found  expedient 
in  the  change  of  our  situation  from  a  DAUGHTER  to  a 
SISTER  Church."— {Perry's  "Jour.  Con."  Vol.  III., 
pp.  23,  24.) 

The  Constitution  of  the  Church  in  South  Carolina, 
adopted  May  3f,  1786,  provided  that  "  the  doctrines  of 
the  Gospel  be  maintained  as  now  professed  in  the 
Church  of  England,  and  uniformity  of  worship  be  con- 
tinued as  near  as  may  be  to  the  Liturgy  of  the  said 
Church." — {Hoffman  s  "  Lazv  of  the  Church"  p.  33.) 

In  the  fundamental  articles  adopted  by  Pennsyl- 
vania in  May,  1784,  it  was  declared  that  "  the  doc- 
trines of  the  Gospel  be  maintained  as  now  professed 
by  the  Church  of  England  ;  and  uniformity  of  worship 
be  continued  as  near  as  may  be  to  the  Liturgy  of  the 
said  Church." — {Perry  s  "Jour.  Con."  VoL  III.,/.  38.) 

The  thirty-fifth  Article  of  the  Constitution  of  the 
State  of  New  York,  adopted  in  1777,  after  recognizing 
as  the  law  of  the  State  such  parts  of  the  Common  Law 


54  LA  W  OF  THE  CHURCH. 

and  of  the  Statute  Law  of  England,  and  of  the  Acts 
of  the  Legislature  of  the  Colony  of  New  York,  as  to- 
gether formed  the  law  of  such  Colony,  on  the  19th  of 
April,  1775,  ordained:  "That  all  such  parts  of  the 
Common  Law,  and  all  such  of  the  said  Statutes  and 
Acts  aforesaid,  or  parts  thereof  as  may  be  construed 
to  establish  or  maintain  any  particular  denomination 
of  Christians  or  their  ministers,  or  concern  the  alle- 
giance heretofore  yielded  to,  and  the  supremacy,  sove- 
reignty, government,  or  exercise  by  the  King  of  Great 
Britain,  and  his  predecessors,  over  the  Colony  of  New 
York,  and  its  inhabitants,  or  are  repugnant  to  this  Con- 
stitution, be,  and  they  are,  hereby  abrogated  and  re- 
pealed." The  thirty-sixth  Article  had  this  clause  : 
"  Nothing  in  the  Constitution  contained  should  be  con- 
strued to  affect  any  grants  of  lands  within  the  State, 
made  by  the  authority  of  the  King,  or  his  predecessors, 
or  to  annul  any  charters  to  bodies  politic,  by  him  or 
them,  or  any  of  them,  made  prior  to  the  14th  of  Octo- 
ber, 1775." — {Hoffman's  "  Ecc.  Law" pp.  40,  41.) 

It  will  be  observed  that  these  Articles  of  the  Consti- 
tution of  the  State  of  New  York  in  no  way  affected  the 
Ecclesiastical  relation  of  the  Church  to  the  Church  of 
England;  their  purpose  was  simply  to  repeal  such  por- 
tions of  the  then  existing  law  as  seemed  to  give  pref- 
erence to  and  establish  any  particular  denomination 
of  Christians,  and  to  abrogate  such  laws  as  gave  sov- 
ereignty over  the  Colony  of  New  York  to  the  King  of 
Great  Britain. 

On  the  6th  of  April,  1784,  an  Act  was  passed  {Laws 
1784,  chap,  xviii.)  relating  to  religious  societies,  the 
ninth  section  of  which  was  as  follows:  "Nothing  in 
the  Act  contained  was  to  be   construed    to  alter   or 


ENGLISH  ECCLESIASTICAL  LA  W.  55 

change  the  religious  constitutions  or  governments  of 
either  of  the  said  churches,  congregations,  or  societies, 
so  far  as  res-pacts  or  in  anywise  concerns  the  doctrine, 
discipline,  cr  worship  thereof." 

A  clause  in  the  Act  of  April  17,  1784  {chap,  xxiii.), 
is  important  as  showing  that  in  New  York  the  Church 
was  at  that  time  known  as  the  Church  of  England. 
The  sixth  section  of  -the  Act  refers  to  certain  Acts 
passed  by  the  Colonial  Legislature  which  "  do  grant 
certain  emoluments  and  privileges  to  the  Episcopal 
Church,  or  that  mode  of  religious  worship  commonly 
called  the  Church  of  England,  .  .  .  and  do  also 
declare  or  imply  a  pre-eminence  or  distinction  cf  the 
said  Episcopal  Church,  or  Church  of  England." — ^Hoff- 
man's " Ecc.  Lazu," p.  42.) 

At  a  Convention  of  the  clergy  of  Connecticut,  held 
at  Wallingford  May  28,  1776,  the  following  address  to 
the  Bishop  of  London  was  adopted:  "  We,  the  clergy 
of  the  Church  of  England  in  Connecticut,  in  a  volun- 
tary convention,  beg  leave,  with  all  humility,  to  recom- 
mend Mr.  Abraham  Beach  to  your  lordship  as  a  proper 
candidate  for  Holy  Orders." 

In  June,  1776,  we  find  record  of  their  calling  them- 
selves "  the  clergy  of  the  Church  of  England." 

In  May,  1781,  a  Convention  was  held,  and  the  head- 
ing of  the  minutes  reads:  "At  a  meeting  of  the  clergy 
of  the  Church  of  England  in  Connecticut." 

Judge  Hoffman  states  that  he  had  examined  various 
documents  connected  with  the  Church  in  Connecticut, 
and  among  them  he  found  a  letter  from  Dr.  Jarvis, 
afterwards  Bishop,  dated  May,  1786,  which,  he  says, 
expresses  the  views  of  the  clergy  of  Connecticut. 

From    this   letter    he  quotes    as    follows:    "In    the 


5 6  LAW  OF  THE  CHURCH. 

planting  and  growth  of  the  Church  in  America,  I 
have  always  understood  that  the  Church  of  England 
was  propagated  and  enlarged.  Now,  as  our  Church 
was  in  her  original  a  part,  and  is  in  her  formation  the 
image  of  that — if  we  still  adhere  to  the  worship 
and  doctrine — is  it  not  proper  (the  question  may  be, 
whether  it  be  not  needful)  to  declare  so  authorita- 
tively?    I  would  then  submit  the  following  particulars  : 

"  i.  That  it  be  recommended  to  the  Bishop  to  call  a 
convocation  at  which  a  resolution  should  be  moved 
that  we  adopt  the  Liturgy  of  the  Church  of  England 
entire,  except  the  prayers  for  the  State,  and  the  offices 
appointed  for  State  days,  or,  with  some  few  abbrevia- 
tions, such  as  will  do  no  injury  to  the  sense,  order,  or 
connection  of  the  whole." — {"Law  of  the  Church"  p.  55.) 

The  remainder  of  the  quotation  relates  to  the  add- 
ing of  a  few  prayers  for  special  occasions  ;  that  certain 
rubrics,  found  necessary  to  deviate  from,  be  altered, 
and  that  the  Canons  be  revised,  and  such  as  are  appli- 
cable, or  can  be  made  so,  be  selected. 

Massachusetts,  in  September,  1784,  adopted  certain 
articles,  one  of  which  was  as  follows  :  "  That  the  Doc- 
trines of  the  Gospel  be  maintained  as  now  professed 
by  the  Church  of  England,  and  Uniformity  of  Worship 
be  continued  as  near  as  may  be  to  the  Liturgy  of  said 
Church." — {Perry's  "Jour.  Con.''  Vol.  III.,  //.  63,  64.) 

It  is  almost  the  identical  language  also  used  by  the 
Convention  of  New  Jersey,  in  1786,  in  their  Memorial 
to  the  General  Convention. 

These  historical  citations  certainly  show  that  it  was 
not  the  desire  nor  the  intention  of  the  Church,  during 
the  period  extending  from  the  Declaration  of  Inde- 
pendence, in    1776,  to  the  first  complete  General  Con- 


ENGLISH  ECCLESIASTICAL  LAW.  57 

vention  of  the  Church,  in  1789,  to  depart  from  the 
Church  of  England  in  "  any  essential  point  of  doctrine, 
discipline,  or  worship." 

On  the  contrary,  they  show  that  it  was  their  desire 
and  intention  to  adhere  thereto  "  as  far  as  shall  be  con- 
sistent with  the  American  Revolution  and  the  Consti- 
tutions of  the  respective  States." 

This,  as  we  have  shown,  was  substantially  the  mind 
of  the  Church,  in  a  majority  of  the  States  at  least,  and 
I  have  been  unable  to  find  any  evidence  that  it  was 
not  the  mind  of  the  Church  in  every  State  from  1776 
to  1789.  The  only  evidence,  so  far  as  I  have  been 
able  to  find  (and  it  is  no  evidence  of  any  fact),  that 
can  give  color  to  the  existence  of  a  different  mind  on 
the  part  of  any  portion  of  the  Church  is  that  given  by 
Bishop  White  in  his  "Memoirs  of  the  Church"  (\st  Ed.t 
p.  64),  where  he  relates  that  at  a  meeting  of  some  of 
the  clergy,  held  in  New  Brunswick,  N.  ].,  in  May,  1784, 
"Some  of  the  more  Northern  clergymen  were  under 
apprehension  of  there  being  a  disposition  on  the  part 
of  the  Southern  members  to  make  material  deviations 
from  the  ecclesiastical  system  of  England  in  the  arti- 
cle of  Church  government." 

During  the  Revolution  and  immediately  thereafter, 
the  Church  in  America  believed  herself  to  be  still 
connected  with  the  Church  of  England.  She 
called  herself,  and  was  known,  in  some  of  the  States  at 
least,  as  "  The  Church  of  England."  She  believed 
that  the  only  alterations  in  the  Prayer  Book  which 
were  justifiable  were  the  prayers  for  the  English  State, 
and  the  English  rulers,  and  that  the  only  departures 
from  that  Ecclesiastical  Law  which  they  had  recog- 
nized and  submitted  to   for   their   guidance  before  the 


58  LA  W  OF  THE  CHURCH. 

Revolution,  that  could  yet  lawfully  be  made,  were  those 
cases  where  the  higher  rule  held  good — "  Necessity 
knows  no  law." 

It  will  be  conceded,  I  think,  as  an  undeniable  proposi- 
tion, that  "  laws  which  are  once  in  force  over  an  organi- 
zation must  remain  in  force  so  long  as  its  identity 
continues,  unless  they  expire  by  limitation  or  are  re- 
pealed by  the  lawmaking  power." 

Let  us  apply  this  proposition  to  the  proposition  in 
hand,  viz. :  that  the  Ecclesiastical  Law  of  England,  which 
was  in  force  in  the  Colonial  Church  prior  to  the  Revo- 
lution, continued  of  force  in  the  Church  during  the 
Revolution,  and  thereafter  until  the  meeting  of  the 
General  Convention  of  the  Church  in  1789.  The  Re- 
volution and  the  Declaration  of  Independence  made 
no  change  in  the  identity  of  the  Church.  She  contin- 
ued to  be  the  same  identical  Church,  during  and  after 
the  Revolution,  that  she  was  before  the  Revolution. 
She  professed  the  same  doctrines;  she  used  the  same 
Liturgy;  she  administered  the  same  Sacraments  and  in 
the  same  unfailing  words;  her  clergy  subscribed  to  the 
same  Articles,  only,  she  was  no  longer  under  the  tem- 
poral sovereignty  of  England. 

That  the  Church  in  America,  after  the  4th  of  July 
1776,  was,  in  every  essential  feature,  the  same  identical 
Church  that  she  was  prior  to  that  date,  and  that  she 
so  continued  to  be  until  1789,  cannot,  and  I  think  will 
not,  be  doubted  by  any  one. 

Many  of  the  authorities,  and  the  opinions  of  the 
Courts,  hereinafter  cited,  prove  most  conclusively  this 
fact  of  the  Church's  continued  identity,  in  every  essen- 
tial feature,  during  the  Revolutionary  and  post-Revo- 
lutionary periods. 


ENGLISH  ECCLESIASTICAL  LA  W.  59 

No  one  can  read  the  records  of  the  various  Conventions 
of  the  clergy  held  in  the  different  States  prior  to  the 
General  Convention  of  1789,  and  the  historical  docu- 
ments connected  therewith,  without  being  impressed 
with  the  universal  desire  of  the  clergy  of  the  Church 
and  the  great  care  by  them  taken  to  preserve  in  every 
essential  feature  the  identity  of  the  Church. 

It  is  not  necessary,  at  this  point,  to  consider  these 
documents  at  length,  as  citations  from  them  will  be 
made  when  we  come  to  consider  the  action  taken  by 
the  Churches  in  the  different  States,  looking  to  a  union 
thereof,  prior  to  the  General  Convention  of  1789.  A 
few  citations  will  be  sufficient  to  evidence  what  was 
the  mind  and  intent  of  the  Church. 

At  a  meeting  of  the  clergy  of  Connecticut,  held  in 
New  York  City,  April  21,  1783,  an  address  to  the 
Archbishop  of  York  was  adopted,  praying  for  the  con- 
secration of  the  Rev.  Dr.  Samuel  Seabury  as  Bishop 
of  Connecticut.  In  this  address  we  find  the  following: 
*'  Notwithstanding  the  dissolution  of  our  civil  connec- 
tion with  the  parent  State,  we  still  hope  to  retain  the 
religious  polity,  the  primitive  and  evangelical  doctrine 
and  discipline,  which,  at  the  Reformation,  were  restored 
and  established  in  the  Church  of  England.  To  render 
that  polity  complete,  and  to  provide  for  its  perpetuity 
in  this  country  by  the  establishment  of  an  American 
Episcopate,  has  long  been  an  object  of  anxious  concern 
to  us,  and  to  many  of  our  brethren  in  other  parts  of 
this  continent."  And  in  the  "  Testimonial  "  signed  by 
them,  to  be  forwarded  with  the  address,  they  ask  for 
the  consecration  of  Dr.  Seabury,  that  "  he  may  return 
to  Connecticut,  and  there  exercise  the  spiritual  pow- 
ers  and  discharge  the  duties  which  are  peculiar  to  the 


60  L-iW  OF  THE  CHURCH. 

Episcopal  character  among  the  members  of  the  Church 
of  England."  They  also  state  that  "it  will  be  the 
means  of  preserving  the  Church  of  England  in  Amer- 
ica from  ruin. — (  White's  "  Memoirs"  1st  Ed.,  pp.  325 

328) 

After  his  consecration,  August  15,  1785,  Bishop  Sea- 
bury  wrote  to  the  Rev.  Dr.  Smith,  of  Maryland,  re- 
garding the  question  of  titles  to  property  in  that  State, 
which  the  Church  was  seeking  to  retain,  in  which  he 
says:  "I  can  see  no  good  ground  of  apprehension  con- 
cerning the  titles  of  estates,  or  emoluments  belonging 
to  the  Church  in  your  State;  your  Church  is  still  the 
Church  of  England,  subsisting  under  a  different  civil 
government." — {Whites  " Memoirs"  \st  Ed.,  pp.  339, 

340) 

In  the  "  Memorial  from  the  Convention  in  New  Jer- 
sey "  to  the  General  Convention,  dated  May  19,  1786 
(to  which  reference  has  already  been  made),  a  request 
is  preferred,  that  the  General  Convention  will  "  remove 
every  cause  that  may  have  excited  any  jealousy  or 
fear,  that  the  Episcopal  Church  in  the  United  States 
of  America  have  any  intention  or  desire  essentially  to 
depart,  either  in  doctrine  or  discipline,  from  the  Church 
of  England  ;  but,  on  the  contrary,  to  convince  the 
world  that  it  is  their  wish  and  intention  to  maintain 
the  doctrines  of  the  Gospel  as  now  held  by  the  Church 
of  England,  and  to  adhere  to  the  Liturgy  of  the  said 
Church,  as  far  as  shall  be  consistent  with  the  American 
Revolution,  and  the  Constitution  of  the  respective 
States." — {Whites  "Memoirs"  1st  Ed., pp.  359,  360.) 

The  opinion  of  Bishop  White  is  important  on  this 
point.  Referring  to  "  the  pretence  made  by  some 
that  the  Episcopal  Church  in  the  United  States  began 


ENGLISH  ECCLESIASTICA L  LA  W.  6 1 

with  its  obtaining  of  the  Episcopacy,"  he  says  :  "A 
new  name  does  not  characterize  the  Church  as  new, 
but  may  arise  from  civil  changes  in  various  ways  to  be 
conceived  of.  What  was  formerly  '  the  Church  of  Eng- 
land in  America  '  did  not  cease  to  exist  on  the  removal 
of  the  Episcopacy  of  the  Bishop  of  London,  by  the 
providence  of  God  ;  but  assumed  a  new  name,  as  the 
dictate  of  propriety." — ("  Memoirs"  1st  Ed.,  p.  97.) 

We  have  already  proven  that  the  English  Ecclesias- 
tical Law  was  of  force  in  the  Colonial  Church,  so  far 
as  it  was  applicable  to  their  circumstances,  up  to  the 
time  of  the  Revolution.  No  one,  I  presume,  will  claim 
that  this  Law  could  or  did  "expire  by  limitation"; 
and  as  there  was  no  "  law-making  power "  for  the 
Church  until  1789,  it  could  not  have  been  "  repealed  " 
by  any  "  law-making  power." 

It  is  clear,  then,  that  the  English  Ecclesiastical  Law, 
which  was  in  force  in  the  Colonial  Church,  did  not 
"expire  by  limitation,"  nor  was  it  repealed  by  any 
"law-making  power,"  and  must,  therefore,  have  "re- 
mained in  force"  in  the  Church  during,  and  after,  the 
Revolution,  if  the  identity  of  the  Church  remained. 
But  we  have  seen  that  the  "  identity  "  of  the  Church 
did  remain  ;  therefore,  so  much  of  the  English  Eccles- 
iastical Law  as  was  in  force  in  the  Colonial  Church 
before  the  Revolution,  of  very  necessity  also  "  remained 
in  force  "  after  the  Revolution. 

The  truth  of  this  proposition  was  most  strongly  as- 
serted by  Hugh  Davey  Evans,  who,  as  it  has  well  been 
said,  was  "  one  of  the  most  distinguished  lawyers  of 
his  day,"  and  "one  of  the  most  profound  Canonists 
that  ornamented  the  history  of  the  American  Church." 
He  says  :  "It  is  not  easy  to  understand  that  a  merely 


62  LA  W  OF  THE  CHURCH. 

political  revolution  could  have  changed  the  Ecclesias- 
tical Law.  So  far  as  the  supposed  Ecclesiastical  Law 
was  connected  with  the  relations  of  the  Church  to 
the  British  Crown,  or  State,  it  was  of  course  abro- 
gated by  the  American  Revolution.  But  there  is  no 
reason  why  the  ordinary  Ecclesiastical  Laws  should 
have  been  changed  by  a  political  revolution,  more 
than  the  laws  which  regulate  civil  rights  or  civil  con- 
tracts. 

"A  revolution  which  puts  an  end  to  one  government, 
and  substitutes  another,  dissolves  all  political  laws, 
and  may  dissolve  all  politico-ecclesiastical  laws  ;  but  it 
leaves  untouched  the  ordinary  laws  of  civil  society. 
This  is  more  especially  clear,  when,  as  in  the  case  be- 
fore us,  the  new  civil  government  refuses  all  connec- 
tion with  Ecclesiastical  affairs.  Neither  could  the  mere 
dissolution,  by  mutual  consent,  of  the  relations  be- 
tween the  Bishop  of  London  and  the  American 
Churchmen,  change  the  Law  under  which  the  latter 
lived.  They  must  have  remained  under  the  authority 
of  the  purely  Ecclesiastical  Laws  of  the  Church  of 
England,  of  which  they  had  been  part,  until  they  were 
changed  by  competent  authority.  But,  although  they 
had  laws,  they  were  without  any  efficient  means  of 
enforcing    them." — [Theophilus   Ainericanus,  pp.    316, 

317) 

To  the  same  effect  is  the   decision   of  the  Supreme 

Court  of  the  United  States  in  Terrett  ct.  al.  v.  Taylor 
ct.  al.  (9  Crunch,  43).  This  was  a  case  involving  the 
question  of  title  to  certain  glebe  lands  which  had  been 
given  to  the  Church  of  England  in  the  Colony  of  Vir- 
ginia. Justice  Story,  in  delivering  the  opinion  of  the 
Court,  which  held  that   the  lands  in  question  now  be- 


ENGLISH  ECCLESIASTICAL  LA  IV.  63 

longed  to  the  Episcopal  Church,  says  :  "  The  dissolu- 
tion of  the  regal  government  no  more  destroyed  the 
right  to  possess  or  enjoy  the  property,  than  it  did  the 
right  of  any  other  corporation  or  individual  to  his  or 
its  own  property.  The  dissolution  of  the  form  of  gov- 
ernment did  not  involve  in  it  a  dissolution  of  civil 
rights,  or  an  abolition  of  the  Common  Law,  under 
which  the  inheritances  of  every  man  in  the  State  were 
held.  .  .  .  The  Revolution  might  justly  take  awaj' 
the  public  patronage,  the  exclusive  care  of  souls  and 
the  compulsive  taxation  for  the  support  of  the  Church. 
Beyond  these  we  are  not  prepared  to  admit  the  justice 
or  the  authority  of  the  exercise  of  legislation."  This 
opinion  was  quoted  and  approved  by  the  same  Court 
in  Society  et.  al.  v.  New  Haven  et.  al.    (8  Wheaton  \U. 

In  Bruwn  v.  Langdon  {Smith  [N.  H.],  Rep.,  178),  it  is 
stated  that  "  change  of  name  would  not  divest  the 
property.  (1  Chr.  Notes,  650.)  Though  the  name  of 
the  corporation  be  changed  (as  in  the  case  of  a  new 
charter),  yet  it  still  retains  its  former  rights  and  privi- 
leges." 


CHAPTER  III. 

OF     THE     ENGLISH     ECCLESIASTICAL     LAW     IN     THE 
STATES   SUBSEQUENT   TO    1789. 

WE  NOW  come  to  the  period  of  the  Church's 
transition  from  the  "  Church  of  England 
in  the  Colonies  "  to  the  "  Protestant  Epis- 
copal Church  in  the  United  States  of  America," 
and  we  shall  see,  as  Judge  Hoffman  well  says, 
that  "  no  violent  disruption  of  the  sacred  bond 
took  place.  The  daughter  glided  from  the  mother's 
side  because  in  the  allotment  of  Providence  she  had 
been  led  to  maturity  and  independence  ;  but  the 
spiritual  union,  the  union  of  faith,  of  worship,  and  of 
discipline  was  undestroyed  ;  and  God  grant  that  it  may 
prove  indestructible." — {"Law  of  the  Church" pp. 
30,  31.) 

Before  proceeding  to  the  consideration  of  the  third 
and  final  proposition,  hereinbefore  adduced,  it  may  be 
well  for  us,  in  order  to  a  more  complete  understand- 
ing of  the  action  taken  by  the  General  Convention  in 
1789,  to  review  briefly  the  separate  action  taken  by  the 
Churches  in  the  different  States,  immediately  prior  to 
that  Convention,  looking  toward  the  union  of  the 
separate  Churches,  and  the  formation  of  a  National 
Church,  and  discover,  if  we  can,  the  principle,  if  any, 
which  underlaid  and  controlled  their  separate  action. 

When  the  peace  of  1783  brought  to  an  end  the 
sovereignty  of  England  over  the  Colonies  "  it  found 
the    Episcopal    Church,"   as    one    has    said,    "pros- 


ENGLISH  ECCLESIASTICAL  LAW.  65 

trated  and  overwhelmed — the  object  of  political 
jealousy  and  hatred — the  object  of  bitter  invective  and 
persecution  of  sects,  profiting-  by  her  downfall  and 
exulting  in  her  ruin.  It  found  her  drooping  in  sorrow 
and  in  fear  amid  the  broken  pillars  of  her  temples  and 
the  disjointed  stones  of  her  altars." 

But  in  this,  her  direst  hour  of  need,  the  Church  was 
not  wanting  in  true  and  faithful  sons,  who  brought  to 
the  great  work  of  the  rehabilitation  and  restoration  of 
the  Church  "  a  zeal,  energy  and  judgment  worthy  of 
the  object  and  adequate  to  the  task." 

Bishop  Perry  tells  us  that  "a  single  sheet  of  fools- 
cap, faded  and  yellow  with  age,  contains  the  records  of 
the  preliminary  gathering  of  the  clergy  and  laity  out  of 
which  grew  the  independent  organization  of  the  Amer- 
ican Church."  {"■Handbook  Gen.  Con."  1785-1S77, 
p.  1.)  It  was  appended  to  the  records  of  a  meeting  for 
another  purpose,  held  in  New  Brunswick,  N.  J.,  May 
11,  17S4,  at  which  were  present  clergy  and  laity 
from  the  States  of  New  York,  New  Jersey  and  Penn- 
sylvania. It  states  that  it  was  agreed  that  a  com- 
mittee named  be  requested  to  wait  upon  the  clergy  of 
Connecticut,  soon  to  be  convened,  "  for  the  purpose  of 
soliciting  their  concurrence  with  us  in  such  measures 
as  may  be  deemed  conducive  to  the  union  and  pros- 
perity of  the  Episcopal  Churches  in  the  States  of 
America.  Also  agreed  by  the  gentlemen  present, 
that  the  undermentioned  persons  be  requested  to  cor- 
respond with  each  other,  and  with  any  other  persons, 
for  the  purpose  of  forming  a  Continental  Representa- 
tion of  the  Episcopal  Church,  and  for  the  better 
management  of  other  concerns  of  the  said  Church."— 
{Perry's  "  Handbook  Gen.  Con."  p.  2.) 


6£  LA  W  OF  THE  CHURCH. 

Several  of  the  Conventions  of  the  Church  in  the  differ- 
ent States  had  previously  adopted  certain  resolutions  or 
fundamental  principles  in  reference  to  a  possible  union 
of  the  Churches.  These  principles  formed  the  basis 
and  were  in  the  main  analogous  to  the  principles 
agreed  upon  afterward  in  the  Conventions  formed  of 
delegates  representing  the  Church  from  the  different 
States,  and  are  worthy  of  notice  on  that  account. 

A  meeting  of  the  clergy  of  Connecticut  was  held  in 
March,  1783.  Its  principal  action  was  the  recom- 
mending of  Dr.  Samuel  Seabury  to  the  Archbishop  of 
York  and  the  English  Bishops  for  consecration  as 
Bishop  of  Connecticut. 

In  Maryland  a  Convention  of  the  clergy  of  the 
Church  in  that  State  was  held  on  August  13,  1783, 
which  set  forth  "  A  declaration  of  certain  fundamental 
rights  and  liberties  of  the  Protestant  Episcopal  Church 
of  Maryland,"  consisting  of  four  articles. 

The  first  article  is  as  follows:  "We  consider 
it  as  the  undoubted  right  of  the  said  Protestant 
Episcopal  Church,  in  common  with  other  Christian 
Churches  under  the  American  Revolution,  to  com- 
plete and  preserve  herself  as  an  entire  Church,  agree- 
ably to  her  ancient  usages  and  professions,  and  to 
have  a  full  enjoyment  and  free  exercise  of  those  purely 
spiritual  powers  which  are  essential  to  the  being  of 
every  Church  or  congregation  of  the  faithful;  and 
which,  being  derived  from  Christ  and  His  Apostles,  are 
to  be  maintained  independent  of  every  foreign  or  other 
jurisdiction,  so  far  as  may  be  consistent  with  the  civil 
rights  of  society  " 

The  second  article  has  reference  to  the  maintaining 
of  the  three  orders  of  the  ministry,  which  "  hath  been 


ENGLISH  ECCLESIASTICAL  LA  W.  67 

the  received  doctrine  of  the  Church  of  which  we  are 
members." 

The  third  article  declares  the  right  of  the  Church  to 
enjoy  the  continuance  of  these  three  orders  of  the 
ministry,  and  that  only  ministers  of  Episcopal  ordina- 
tion ought  to  have  the  enjoyment  of  the  property 
"  formerly  belonging  to  the  Church  of  England  in  this 
State;  and  which,  by  the  constitution  and  form  of 
government,  is  secured  to  the  said  Church  forever;  by 
whatsoever  name  she,  the  said  Church,  or  her  superior 
order  of  ministers,  may  in  future  be  denominated." 

The  fourth  article  declares  the  right  of  the  Church, 
when  duly  organized,  etc.,  "  to  revise  her  liturgy, 
forms  of  prayer,  and  public  worship,  in  order  to  adapt 
the  same  to  the  late  Revolution,  and  other  local  cir- 
cumstances of  America." — {White's  "Memoirs"  \st  Ed., 
pp.  86,  87.) 

Another  Convention  was  held  in  June,  1784,  which 
approved  the  aforesaid  declaration  and  set  forth  "  cer- 
tain fundamental  principles  of  Ecclesiastical  govern- 
ment." Among  other  things,  they  forbid  any  of  the 
orders  of  the  clergy  having  a  view  of  settling  in  Mary- 
land from  taking  or  subscribing  any  civil  or  canonical 
obligation  of  obedience  to  any  foreign  power  or 
authority.  They  also  declare  that  "  the  duty  and 
office  of  a  Bishop  differs  in  nothing  from  that  of  other 
priests,  except  in  the  power  of  ordination  and  con- 
firmation; and  in  the  right  of  precedency  in  Ecclesiasti- 
cal meetings  or  Synods." 

The  composition  of  Ecclesiastical  Conventions  or 
Synods  was  also  provided  for,  and  was  to  consist  of  a 
representation  of  the  laity  as  well  as  of  the  clergy. 

Strange  as  some  of  these  principles  may  seem  to  us, 


68  LA  W  OF  THE  CHURCH. 

we  must  remember  that  they  were  a  concession  to  cir- 
cumstances, that  was  at  that  time  unavoidable  in  the 
State  of  Maryland.  The  Church  had  bitter  opponents 
on  every  side,  who  were  vigorously  seeking  her  com- 
plete destruction  and  hoping  to  materially  profit  by  her 
downfall.  There  was  also  a  most  bitter  feeling  against 
Bishops,  which  will  account  for  the  remarkable  defini- 
tion of  the  Episcopal  order  set  forth  by  the  Convention 
of  1784. 

Dr.  Hawks  says:  "The  clergy  very  wisely  ac- 
quiesced [in  this  definition  of  Bishops  by  the  laity],  and 
indeed,  had  they  not  done  so,  the  Church,  now  left 
almost  entirely  dependent  on  the  good  will  of  the 
laity,  would  not  have  been  organized  at  all." — ("  Cont. 
to  Eccl.  His.,"  Vol.  11.,/.  298.) 

Bishop  White  tells  us  that  this  definition  of  the  au- 
thority of  a  Bishop  "  gave  great  offence  to  some  of  the 
clergy." — ("  Memoirs"  1st  Ed.,  p.  90.) 

In  Pennsylvania,  a  Convention  of  the  Church,  com- 
posed of  clergy  and  lay  members,  was  held  in  Phila- 
delphia in  May,  1784,  and  certain  principles  were  set 
forth  "  as  a  foundation  for  the  future  forming  of  an 
Ecclesiastical  body  for  the  Church  at  large."  They 
declared  the  independence  of  the  Church;  that  it 
ought  to  have  exclusive  power  to  govern  itself;  adher- 
ence to  the  Liturgy  of  the  Church  of  England;  the 
three  orders  of  the  ministry ;  a  representative  body  of 
clergy  and  laity  the  only  power  to  make  Canons ;  and 
only  certain  powers  to  be  delegated  to  a  General  Eccles- 
iastical Government. — {Whites  "Memoirs,"  \st  Ed., p. 

;3-) 

Bishop  White  tells  us  {Idem,  p.  yf),  that  it  was 
deemed  expedient  to  admit  the  laity  to  a  representa- 


ENGLISH  ECCLESIA  STICAL  LA  W.  69 

tion  in  Conventions,  "  from  its  being  a  natural  conse- 
quence of  the  principle  of  following  the  Church  of 
England  in  all  leading  points  of  her  doctrine,  discipline, 
and  worship.  We  could  not,  in  any  other  way, 
have  had  a  substitute  for  the  parliamentary  sanction  to 
legislative  acts  of  power." 

In  Massachusetts,  a  meeting  of  the  clergy  was  held 
at  Boston  in  September,  1784,  which  adopted  certain 
resolves  which  were  almost  identical  with  those 
adopted  in  Philadelphia  in  the  preceding  May. 

At  the  meeting  held  in  New  Brunswick,  N.  J.,  in 
May,  1784,  it  had  been  agreed  by  the  clergy  present 
to  procure  as  general  a  meeting  of  representatives  of 
the  clergy  and  laity  of  the  different  States  as  might  be 
possible,  in  the  City  of  New  York,  on  the  6th  of  October 
following.  At  this  meeting  in  New  York  City,  October 
6,  1784,  there  were  present  clergy  from  Massachusetts, 
Connecticut,  Maryland,  and  Virginia;  and  clergy  and 
laity  from  New  York,  New  Jersey,  Pennsylvania  and 
Delaware. — {While s  ''Memoirs"  1st  Ed., pp.  64,  65  ) 

It  was  only  a  voluntary  Convention,  and  could,  there- 
fore, only  recommend  to  the  clergy  and  congregations 
of  the  Church,  in  the  States  represented,  and  propose 
to  those  in  States  not  represented,  that  they  take  steps 
"  to  unite  in  a  general  Ecclesiastical  constitution  on 
the  following  fundamental  principles." 

"  I.  That  there  shall  be  a  General  Convention  of  the 
Episcopal  Church  in  the  United  States  of  America. 

"II.  That  the  Episcopal  Church  in  each  State  send 
deputies  to  the  Convention,  consisting  of  clergy  and 
laity. 

"III.  That  associated  congregations  in  two  or  more 
States  may  send  deputies  jointly. 


7o  LA  W  OF  THE  CHURCH. 

"  IV.  That  the  said  Church  shall  maintain  the  doc- 
trines of  the  Gospel  as  now  held  by  the  Church  of 
England  ;  and  shall  adhere  to  the  Liturgy  of  the  said 
Church  as  far  as  shall  be  consistent  with  the  American 
Revolution,  and  the  constitutions  of  the  respective 
States. 

' '  V.  That  in  every  State  where  there  shall  be  a  Bishop 
duly  consecrated  and  settled,  he  shall  be  considered  as 
a  member  of  the  Convention  ex-officio. 

"  VI.  That  the  clergy  and  laity  assembled  in  Conven- 
tion shall  deliberate  in  one  body,  but  shall  vote  sepa- 
rately: and  the  concurrence  of  both  shall  be  neces- 
sary to  give  validity  to  every  measure. 

"VII.  That  the  first  meeting  of  the  Convention  shall 
be  at  Philadelphia  the  Tuesday  before  the  Feast  of 
St.  Michael  next;  to  which  it  is  hoped,  and  earnestly 
desired,  that  the  Episcopal  Churches  in  the  respective 
States  will  send  their  clerical  and  lay  deputies,  duly 
instructed  and  authorized  to  proceed  on  the  necessary 
business  herein  proposed  for  their  deliberation." — 
{Whites  "Memoirs"  at  Ed.,  pp.  65,  66.) 

In  remarking  on  this  call  for  the  first  Convention  of 
the  whole  Church,  Bishop  White  says:  "It  seemed 
a  great  matter  gained,  to  lay  what  promised  to  be  a 
foundation  for  the  continuing  of  the  Episcopal  Church 
in  the  leading  points  of  her  doctrine,  discipline  and 
worship,  yet  with  such  an  accommodation  to  local 
circumstances  as  might  be  expected  to  secure  the  con- 
currence of  the  great  body  of  her  members,  and 
without  any  exterior  opposition,  to  threaten  the  over- 
setting of  the  scheme." — {Idem,  p.  6j.) 

On  September  27 ,  1  '85,  delegates  from  seven  States, 
including  South  Carolina,  not  represented  at  the  New 


ENGLISH  ECCLESIASTICAL  LA  IV.  7i 

York  Convention  in  1784,  met,  pursuant  to  the  call,  at 
Philadelphia.  The  "  fundamental  principles"  set  forth 
by  the  former  Convention,  as  noted  above,  with  the  ex- 
ception of  the  fourth,  were  formally  approved,  and  be- 
came a  bond  of  union  which  held  the  several  Churches 
together  until  the  Convention  of  1789.  In  the  place  of 
the  fourth  article  relating  to  the  Liturgy,  a  resolution 
was  adopted  for  the  appointment  of  a  committee  to 
report  such  alterations  as  they  should  deem  necessary 
to  "  render  it  consistent  with  the  American  Revolution 
and  the  Constitutions  of  the  respective  States." — (Per- 
ry's "  Handbj  k  Gen.  Con.''  p.  8.) 

The  Convention  "applied  themselves  to  the  making 
of  such  alterations  in  the  Book  of  Common  Prayer  as 
were  necessary  for  the  accommodating  of  it  to  the  late 
changes  in  the  State,  and  the  proposing,  but  not  es- 
tablishing, of  such  other  alterations  in  that  book  and 
in  the  articles  as  they  thought  an  improvement  of  the 
service  and  of  the  manner  of  stating  the  principal  arti- 
cles of  faith.  These  were  published  in  a  book  ever 
since  known  by  the  name  of  the  Proposed  Book." — 
(White's  " Memoirs''  \st.  Ed., p.  12.) 

It  is  not  necessary  for  the  purpose  of  this  work  to 
consider  at  any  length  the  changes  made  in  the  Pro- 
posed Book.  The  book  was  published;  but  it  was  im- 
mediately evident,  as  Bishop  White  says,  "that  in  re- 
gard to  the  Liturgy  the  labors  of  the  Convention  had 
not  reached  their  object."  It  was  condemned  at  the 
outset,  and  failed  completely  to  establish  itself  as  the 
Prayer  Book  of  the  Church.  "  The  question  of  its 
adoption  was  not  even  considered  by  the  following 
General  Conventions."  —  (Perry's  '''Handbook  Gen. 
Con." p.  42.) 


72  LA  IV  OF  THE  CHURCH. 

Its  only  use  seems  to  have  been  to  form  the  basis  of 
a  Prayer  Book  for  a  schism  from  the  Church  nearly 
ninety  years  later. 

In  order  that  other  Conventions  might  be  held,  an 
Ecclesiastical  Constitution  was  proposed,  and  ordered 
transcribed,  but  no  other  action  in  the  matter  was 
taken  at  this  Convention. 

The  outlines  of  this  proposed  Constitution  were,  in 
brief,  as  follows  :  There  should  be  a  triennial  Conven- 
tion ;  voting  should  be  by  States,  each  order  having  a 
negative  upon  the  other;  a  Bishop  to  be  ex-officio  a 
member  of  the  Convention  ;  the  clergy  to  be  account- 
able only  to  the  Ecclesiastical  authority  in  the  State 
where  they  belonged  ;  requirement  of  a  declaration  of 
belief  in  the  Holy  Scriptures  and  a  promise  of  con- 
formity to  the  doctrines  and  worship  of  the  Churci:. 
It  also  provided  for  the  continued  use  of  the  Church 
of  England  Prayer  Book,  with  the  alterations  already 
made,  until  such  a  time  as  the  "Proposed  Book" 
might  be  ratified  by  the  Conventions  of  the  States  rep- 
resented in  the  Convention. — {White  s  "  Memoirs"  \st 
Ed.,  p.  14.     Perry's"  Jour.  Con."  Vol.  I.,  p.  22.) 

Another  important  action  of  the  Convention — the 
most  fruitful  one,  as  well  as  the  most  far-reaching  in 
its  consequences  to  the  Church — was  the  passage  of  a 
resolution,  the  first  section  of  which  is  as  follows : 
"Resolved :  1.  That  this  Convention  address  the  Arch- 
bishops and  Bishops  of  the  Church  of  England,  re- 
questing them  to  confer  the  Episcopal  character  on 
such  persons  as  shall  be  chosen  and  recommended  to 
them  for  that  purpose  from  the  Conventions  of  this 
Church  in  the  respective  States."  The  second  section 
'•  recommended   to   the   said    Conventions,  that  they 


ENGLISH  ECCLESIASTICAL  LA  W.  73 

elect  persons  for  this  purpose." — {Perry  s  "■Jour.  Con.," 
Vol.  I.,  p.  25) 

The  address  ordered  was  submitted  to  the  Conven- 
tion, signed  by  the  members  thereof,  and  forwarded 
to  John  Adams,  the  American  Minister  to  England, 
with  the  request  that  he  present  it  to  the  Archbishop 
of  Canterbury.  As  this  address  will  be  considered 
hereafter,  consideration  of  it,  for  the  present,  is  unnec- 
essary. After  empowering  a  Committee  to  call  another 
General  Convention  when  they  deemed  necessary,  the 
Convention  of  17S5  adjourned. 

The  second  General  Convention  met  in  Philadel- 
phia June  20,  1786.  The  Constitution  proposed  in  the 
former  Convention  was  taken  up  and  several  important 
amendments  were  made,  in  order  to  make  it  more  con- 
formable to  the  desires  of  the  Archbishops  and  Bishops 
of  the  Church  of  England,  as  expressed  by  them  in  a 
letter  written  to  the  committee  in  reply  to  the  address 
made  to  them  by  the  Convention  of  1785.  The  Con- 
vention also  ordered  a  second  address  to  the  Arch- 
bishops and  Bishops  of  the  Church  of  England  to 
assure  them  that  they  did  "  not  intend  to  depart 
from  the  doctrine,  worship,  and  discipline  of  the 
Church  of  England,"  further  than  was  made  neces- 
sary by  local  circumstances.  This  was  signed  by 
the  members  of  the  Convention,  and  forwarded  to 
England. 

The  next  General  Convention,  and  the  last  prior  to 
the  Convention  of  1789,  met  in  Wilmington,  Del.,  on 
the  10th  of  October,  1786. 

The  principal  business  was  the  consideration  of  the 
letters  of  the  Archbishop  and  Bishops  of  the  Church 
of  England,  and  "  of  how  far  they  should  accommodate 


74  LA  }V  OF  THE  CHURCH. 

to  the  requisitions  of  the  English  Prelates." — {White's 
"Memoirs"  \stEd.,p.  iS.) 

The  Convention  finally  resolved  to  restore  the  Ni- 
cene  Creed  to  its  place  after  the  Apostles'  Creed  in 
the  Prayer  Book ;  also  the  words,  "  He  descended  into 
hell,"  in  the  Apostles'  Creed. 

An  address  to  the  Archbishops  of  Canterbury  and 
York  was  ordered  and  signed  by  the  President  in  be- 
half of  the  Convention. 

At  this  Convention  the  testimonials  of  the  Rev.  Dr. 
White,  as  Bishop-elect  of  Pennsylvania  ;  the  Rev.  Dr. 
Provoost,  as  Bishop-elect  of  New  York,  and  the  Rev. 
Dr.  Griffith,  as  Bishop-elect  of  Virginia,  were  signed 
by  the  members  of  the  Convention.  The  Rev.  Drs. 
White  and  Provoost  sailed  for  England  on  the  2d  of 
November,  1786,  and  on  Sunday,  the  4th  of  February, 
1787,  in  the  chapel  of  Lambeth  Palace,  they  were  con- 
secrated Bishops  by  the  Archbishop  of  Canterbury; 
the  Archbishop  of  York  presenting  them,  and  the  Bishop 
of  Bath  and  Wells,  and  the  Bishop  of  Peterborough, 
joining  with  the  two  Archbishops  in  the  laying-on  of 
hands.— ( WAtes  "  Memoirs"  \st  Ed.,  p.  158.) 

On  the  following  day,  the  Bishops  of  New  York  and 
Pennsylvania  left  London  on  their  homeward  journey, 
and  arrived  in  New  York  on  Easter  Sunday,  April  7th. 
The  long  continued  "struggle  for  the  Episcopate  "  in 
the  English  line  was  now  happily  ended,  and  the 
American  Church  was  complete  with  its  three  orders 
of  the  ministry.  New  York  and  Pennsylvania  each  had 
her  Bishop  in  the  English  line,  and  Connecticut  her 
Bishop  in  the  Scottish  line,  in  the  person  of  Bishop 
Seabury,  v/ho  had  been  consecrated  by  the  Non-juring 
Bishops  of  Scotland  on  the  14th  of  November,  1784. 


ENGLISH  ECCLESIASTICAL  LAW.  75 

This  history  of  the  action  taken  by  the  Churches  in 
the  different  States,  for  a  union  thereof,  and  the  form- 
ing of  a  national  organization,  is  important;  first,  as 
indicating  what  was  the  mind  of  the  Church  in  the 
different  States,  during  this  formative  period,  regard- 
ing the  relation  they  bore  to  the  Church  of  England, 
and  what  changes  in  doctrine,  discipline,  and  worship 
each  deemed  necessary;  second,  in  helping  us  to  under- 
stand more  clearly  the  final  action  taken,  when,  as  an 
entire  Church,  with  authority  to  act,  she  was  assem- 
bled in  a  complete  General  Convention. 

With  this  introduction  we  can  proceed  to  consider 
the  doings  of  the  General  Conventions  of  1789  and 
1792. 

The  Convention  of  1789  met  in  Philadelphia,  July 
28th,  and  continued  until  August  8th.  Bishop  White, 
of  Pennsylvania,  clerical  and  lay  deputies  from  the 
States  of  New  York,  New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland,  South  Carolina,  and  a  lay  delegate 
from  Virginia,  were  present  and  composed  the  Con- 
vention.— {Perry s  "Journals  of Con. ,"  Vol.  I.,  pp.  65, 
66.) 

It  must  be  borne  in  mind  that  this  was  not  a  Gener- 
al Convention  in  the  true  sense  of  the  word,  as  it  was 
composed  of  only  one  House,  the  House  of  Clerical 
and  Lay  Deputies,  with  Bishop  White  as  President 
thereof,  but  provision  was  made  at  this  Convention  for 
a  General  Convention.  The  deputies  were  first  called 
upon  "  to  declare  their  powers  relative  to  the  object  of 
the  resolution  "  adopted  by  the  June  Convention  of 
1786,  recommending  the  Conventions  of  the  Church  in 
the  several  States  to  give  power  to  their  deputies  to 
the  next  General  Convention,  "to  confirm   r.rd  ratify 


76  LA  W  C>F  THE  CHURCH. 

a  General  Constitution,  respecting  both  the  doctrine 
and  discipline  cf  the  Protestant  Episcopal  Church  in 
the  United  States."— {Perry  s^  Jour,  vf  Con.''  Vo..  I., 
pp.  42,  69.) 

The  deputies  stated  that  they  were  fully  authorized 
to  ratify  a  Book  of  Common  Prayer,  etc.,  for  the  use 
of  the  Church.  {ldc?n>  p.  69 )  The  Convention 
adopted  a  set  of  resolutions  relating  to  the  perpetuat- 
ing of  the  succession  of  the  Episcopal  Order,  and  the 
requesting  of  the  Churches  in  New  England  to  meet 
with  the  Churches  of  the  States  then  represented  in  Con- 
vention, and  the  three  Bishops,  in  an  adjourned  Con- 
vention. 

The  principal  business  of  the  Convention,  aside  from 
that  above  noted,  consisted  in  the  adoption  of  a  body 
of  Canons,  and  the  reviewing  and  remodelling  of  the 
Constitution  formed  in  1786.  The  principal  feature 
now  given  to  the  Constitution  was  a  division  of  the 
Convention  into  two  Houses,  one  consisting  of  the 
Bishops,  and  the  other  cf  Clerical  and  Lay  Deputies, 
who  should  vote  by  States  and  by  orders,  when  so  re- 
quired. As  the  Constitution  and  the  Canons  were  further 
amended  at  an  adjourned  Convention,  further  consider- 
ation of  them  at  this  point  is  not  necessary. 

The  Convention  adjourned  to  meet  at  the  same  place 
on  the  29th  of  September  following. 

On  the  clay  appointed  the  Convention  re-assembled. 
A  clerical  deputy  from  Virginia  appeared  and  took  his 
seat,  thus  completing  the  delegation  from  that  State. 

Bishop  Seabury,  of  Connecticut,  with  some  of  the 
clergy  of  New  England,  were  present  to  confer  with 
the  Convention,  agreeable  to  the  invitation  sent  them 
by  the  Convention  at  its  first  session. 


ENGLISH  ECCLESIASTICAL  LA  IV.  77 

The  Convention  then  appointed  a  committee  to  con- 
fer with  the  clergy  from  New  England  on  the  subject 
of  the  proposed  union. 

The  committee,  after  such  conference  held,  reported 
to  the  Convention  that  the  clergy  from  New  England 
had  authority  to  approve  the  Constitution,  as  set  forth 
at  the  first  session  of  the  Convention,  and  that  they 
were  willing  to  assent  to  it,  provided  the  third  article 
thereof  was  "  so  modified  as  to  declare  explicitly  the 
right  of  the  Bishops,  when  sitting  in  a  separate  House, 
to  originate  and  propose  Acts  for  the  concurrence  of 
the  other  House  of  Convention  and  to  negative  such 
Acts  proposed  by  the  other  House  as  they  may  dis- 
approve."— {Perry  s  "Jour,  of  Con."  Vol.  !.,/>.  g$.) 

The  committee  recommended  that  the  said  third 
article  be  amended,  as  desired  by  the  New  England 
clergy.  The  Convention  then  proceeded  to  so  amend 
the  article  in  question,  with  this  exception,  that  in- 
stead of  an  absolute  veto  being  given  to  the  House  of 
Bishops  over  the  legislation  of  the  other  House,  pro- 
vision was  made  that  such  veto  might  be  negatived  by 
a  four-fifths  vote  of  the  House  of  Clerical  and  Lay 
Deputies. 

Bishop  Seabury  and  the  clerical  deputies  from  New 
England  reluctantly  consented  to  this  amendment, 
and  signified  in  writing  their  assent  to  the  Constitution 
of  the  Church  as  modified. 

Bishop  Seabury  and  the  clerical  deputies  from  the 
Church  in  Connecticut  and  the  Church  in  Massachu- 
setts and  New  Hampshire  then  took  their  seats  in  the 
Convention. 

It  may  be  well  at  this  point  to  give  a  summary  of  the 
articles  of  the  Constitution  as  set  forth  by  the  Conven- 


;8  LAW  OF  THE  CHURCH. 

tion  on  the  8th  of  August,  and  amended  the  2d  of 
October,  1789. 

The  first  article  provided  for  a  General  Convention 
of  the  Church  triennially. 

The  second  article  provided  for  the  representation 
therein  of  the  Church  in  each  State,  clergy  and  laity  to 
be  represented  by  one  or  more,  not  exceeding  four,  of 
each  order,  the  concurrence  of  each  order,  voting  by 
States,  and  by  orders  when  required,  being  necessary  to 
constitute  a  vote  of  the  Convention  ;  provision  was 
also  made  that  a  State,  though  unrepresented  at  any 
Convention,  should  be  bound  by  the  action  of  that 
Convention. 

The  third  article  provided  for  a  separate  House  of 
Bishops  whenever  there  shall  be  three  or  more  Bishops, 
and  gave  a  right  to  that  House  to  originate  and  pro- 
pose measures  for  the  concurrence  of  the  lower  House, 
and  a  negative  upon  the  action  of  the  House  of  Clerical 
and  Lay  Deputies,  unless  adhered  to  by  four-fifths  of 
that  House  ;  the  House  of  Bishops  to  signify  to  the 
Convention  their  approbation  or  disapproval  of  any 
measure,  in  writing,  within  three  days  after  reception 
thereof,  failing  which,  such  measure  should  have  the 
operation  of  a  law. 

The  fourth  article  provided  for  the  choice  of  a  Bishop 
in  every  State  by  the  Convention  of  that  State,  and  that 
the  jurisdiction  of  a  Bishop  be  confined  to  his  own 
State,  unless  requested  to  perform  some  Episcopal  act 
by  the  Church  in  another  State. 

The  fifth  article  provided  for  the  future  admission  of 
the  Church  in  any  State  not  then  represented. 

The  sixth  article  provided  that  the  Convention  of 
every  State  should  institute  the  mode  of  trying  clergy- 


ENGLISH  ECCLESIASTICAL  LA  W.  79 

men  therein,  and  that  one  of  the  Episcopal  Order  should 
be  present  at  every  trial  of  a  Bishop,  and  that  none  but 
a  Bishop  should  pronounce  sentence  of  deposition  or 
degradation  from  the  ministry  on  any  clergyman. 

The  seventh  article  provided  for  the  examination  of 
candidates  for  Holy  Orders,  and  the  declaration  of 
belief  and  of  conformity  to  the  Church  before  admis- 
sion thereto.  It  also  provided  that  no  one  ordained 
by  any  foreign  Bishop  should  be  allowed  to  officiate  as 
a  minister  of  the  Church  before  subscribing  to  the 
aforesaid  declaration,  and  complying  with  the  Canons 
for  such  case  made  and  provided. 

The  eighth  article  provided  that  every  Church  in  the 
States  which  should  have  adopted  the  Constitution, 
"  shall  use  a  Book  of  Common  Prayer  and  the  Offices, 
when  the  same  shall  be  set  forth  by  this  or  any  future 
General  Convention." 

The  ninth  article  provided  that  the  Constitution  was 
to  be  unalterable,  "  unless  in  General  Convention  by  a 
majority  of  the  States  which  may  have  adopted  the 
same."  It  also  provided  how  these  alterations  should 
be  proposed,  made  known,  and  finally  ratified. — 
{Perry  s  "Jour,  of  Con."  Vol.  I.,  pp.  99,  100.) 

The  third  article  of  the  Constitution  provided  for  the 
division  of  the  Convention  into  two  Houses  as  soon  as 
three  Bishops  should  belong  to  that  body.  This  num- 
ber was  completed  by  the  assent  of  Bishop  Seabury  to 
the  Constitution,  and  his  becoming  a  member  of  the 
Convention. 

On  October  3,  1789,  Bishops  White  and  Seabury 
withdrew  from  the  House  of  Clerical  and  Lay  Depu- 
ties and  formed  a  House  of  Bishops,  and  the  first  com- 
plete General  Convention  began  its  labors. 


8o  LA  W  OF  THE  CHURCH. 

The  two  Houses  entered  upon  a  review  of  the 
Liturgy  of  the  Church  and  of  the  Canons  passed  at 
the  previous  session. 

Only  a  brief  review  of  the  Canons  finally  adopted  is 
necessary  for  our  present  purpose. 

Canon  I.  declared  that  there  should  always  be  the 
three  Orders  of  the  Ministry  in  the  Church. 

Canon  II.  described  the  form  of  certificate  to  be  pro- 
duced on  the  part  of  the  Bishop-elect,  and  of  the  testi- 
mony from  the  General  Convention. 

Canon  III.  relates  to  Episcopal  visitations. 

Canons  IV.  to  VIII.  inclusive  relate  to  the  age  of 
those  to  be  ordained  or  consecrated,  titles  of  those  in 
Orders,  testimonials  and  learning  of  those  who  are  to 
be  ordained,  and  the  stated  times  of  ordination. 

Canon  IX.,  to  those  ordained  by  foreign  Bishops. 

Canon  X.,  to  the  use  of  the  Book  of  Common  Prayer. 

Canon  XL,  to  the  duty  of  ministers  in  regard  to 
Episcopal  visitation. 

Canon  XII.  directs  the  censuring  of  notorious  crimes 
and  scandals. 

Canon  XIII.  requires  sober  conversation  in  ministers. 

Canon  XIV.  reiates  to  the  due  celebration  of  Sun- 
days. 

Canon  XV.  directs  ministers  to  keep  a  register. 

Canon  XVI.  provides  that  a  list  of  the  ministers  of 
the  Church  shall  be  made  and  published. 

Canon  XVII.  requires  that  notice  shall  be  given  to 
the  Bishop  or  Standing  Committee  of  the  induction 
and  dismission  of  ministers. 

Our  more  important  concern  is  with  the  revision  of 
the  Book  of  Common  Prayer  as  made  by  this  Conven- 
tion and  the  following  Convention  of  1792. 


ENGLISH  ECCLESIASTICAL  LA  W.  8t 

"The  Convention  appointed  five  committees  to  pro- 
vide a  Prayer  Book  for  the  Church  :  one  on  the  Calen- 
dar and  Tables  of  Lessons,  with  the  Collects,  Epistles 
and  Gospels  ;  another,  on  the  Morning  and  Evening- 
Service  ;  a  third,  on  the  Litany,  and  occasional  prayers 
and  thanksgivings  ;  a  fourth,  on  the  order  for  the  ad- 
ministration of  the  Holy  Communion  ;  and  a  fifth,  to 
report  in  what  manner  the  Psalms  should  be  used." — 
(Periys  "Handbook  General  Con."  p.  72.) 

No  effort  was  made  at  this  Convention  for  the  adop- 
tion of  the  "  Proposed  Book."  The  House  of  Clerical 
and  Lay  Deputies  proceeded,  so  far  as  the  resolutions 
above  noted  would  indicate,  to  compile  a  Prayer  Book 
de  ?iovo,  implying  thereby  that  no  Prayer  Book  of  au- 
thority existed.  But,  as  Bishop  Perry  well  says  in  his 
"  Handbook  of  the  General  Convention  "  {p.  72):  "  The 
latitude  of  change  this  course  seemed  to  indicate  was 
lessened  by  the  general  disposition  of  the  members  of 
the  Convention  to  vary  the  Book  as  little  as  possible 
from  the  English  model."  This  implied  opinion  of  the 
House  of  Clerical  and  Lay  Deputies,  that  the  English 
Prayer  Book  had  no  authority,  has  been  used  by  some 
as  the  basis  of  an  argument  against  the  identity  of  the 
American  Church  with  the  Church  of  England,  and 
also  as  evidencing  what  was  the  mind  of  the  Church 
in  1739,  regarding  the  force  of  the  Ecclesiastical 
Law  of  the  Church  of  England  upon  the  American 
Church.  As  this  question  will  be  noted  hereafter, 
consideration  of  it  at  any  length,  at  the  present  mo- 
ment, is  not  necessary.  But  before  proceeding  with 
the  question  in  hand,  I  desire  to  call  attention  to  a 
statement  that  has  been  repeatedly  made,  that  the 
General    Convention   (as   one   statement    is),    or   the 


S2  LA  W  OF  THE  CHURCH. 

House  of  Clerical  and  Lay  Deputies,  in  1789,  resolved, 
"  that  the  Protestant  Episcopal  Church  possesses  no 
institutions  until  made  for  her  specially,  and  that  we 
are  no  further  bound  by  either  the  Catholic  or  the 
English  Canons  when  confessedly  applicable,  than  as 
we  distinctly  and  by  legislation  recognize  them."  I 
can  find  no  record  of  either  the  presentation  or  the 
adoption  of  any  such  resolution  by  either  House  in 
1789,  nor  any  reference  to  such  a  resolution  in  Perry's 
reprint  of  the  ''Journals  of  General  Conventions,  etc.," 
Perry's  "  Handbook  of  the  General  Conventions,  1785— 
1877,"  or  in  the  1st  or  2d  Editions  of  Bishop  White's 
"Memoirs."  In  Vinton's  "Manual  on  Common  Law" 
the  statement  quoted  is  made,  and  "Hoffman's  Law  of 
the  Church  "  (p.  37,  note)  is  given  as  authority  ;  but 
reference  thereto  shows  that  judge  Hoffman  makes  no 
such  statement.  Dr.  Vinton  also  gives  Bishop  White's 
"Memoirs  of  the  Church"  {p.  175,  et.  seq  )  as  another 
authority,  but  Bishop  White  nowhere  in  his  "  Me- 
moirs" so  far  as  I  have  been  able  to  find,  makes  any 
such  statement,  nor  can  any  implication  be  drawn  from 
his  words  that  such  a  resolution  was  even  offered. 
There  appears  to  be  no  more  authority  for  the  state- 
ment that  such  a  resolution  was  adopted  by  either 
House  of  the  Convention  of  1789,  than  for  any  "  cun- 
ningly devised  fable."  The  deliberations  of  the  two 
Houses  on  the  provision  of  a  Book  of  Common  Prayer, 
we  are  told,  were  conducted  with  "  the  utmost  har- 
mony." 

The  desire  of  the  House  of  Bishops,  that  no  mate- 
rial alterations  from  the  Prayer  Book  of  the  Church  of 
England  should  be  made,  prevailed.  The  alterations 
made,   other    than    those   of    a   political    nature,  were 


ENGLISH  ECCLESIASTICAL  LAW.  83 

mainly  verbal,  together  with  the  omission  of  repeti- 
tions." A  few  additions  were  made,  viz.,  certain  selec- 
tions of  Psalms,  but  the  use  of  which  was  optional;  a 
Service  of  Thanksgiving,  an  Order  for  Family  Prayer, 
and  an  Office  for  the  Visitation  of  Prisoners  taken 
from  the  Irish  Prayer  Book. 

Besides  these,  the  Order  for  the  Administration  of 
the  Holy  Communion  was  changed  to  conform  more 
nearly  to  the  First  Prayer  Book  of  Edward  VI.,  by 
the  restoration  of  the  Oblation  and  Invocation  to  the 
Consecration  Prayer,  of  which  they  were  formerly  a 
part.  The  several  alterations  and  additions  were 
finally  completed  on  October  16th,  and  the  Book  of 
Common  Prayer  was  set  forth  and  ordered  to  be  in  use 
from  the  1st  of  October,  1790. 

A  joint  committee  of  both  Houses  was  appointed  to 
superintend  the  publication  of  the  Book  of  Common 
Prayer  as  set  forth  by  the  Convention. 

One  other  matter  connected  with  the  Prayer  Book 
should  be  carefully  noticed,  viz.,  the  action  taken  re- 
garding the  Preface  to  the  Book  of  Common  Prayer, 
which  has  a  most  important  bearing  upon  the  question 
as  to  what  was  the  mind  of  the  General  Convention  of 
1789,  regarding  any  material  departure  from  the  disci- 
pline, as  well  as  the  doctrine  and  worship  of  the  Church 
of  England. 

The  argument  has  been  made,  that  the  Preface  to 
the  Prayer  Book  is  "  not  in  the  form  of  a  legal  enact- 
ment," and  "  without  evidence  of  its  ever  having  been 
submitted  to  and  formally  adopted  by  the  General 
Convention,"  and  is  characterized  as  "  perhaps  only 
the  work  of  a  committee." 

Let  us  see  how  far  this  is   true,  the  Journals   of  the 


84  LA  W  OF  THE  CHURCH. 

Conventions  of  1789  and  1792  being-  our  authorities  in 
the  matter.  On  page  121,  Vol.  I.,  of  Perry  s  Riprint 
of  the  "Journals  of  the  Early  Conventions  "  {Journal 
of  the  House  of  Bishops)  is  this  record  :  "  Thursday, 
October  15,  1789.  .  .  .  This  House  originated, 
and  proposed  to  the  House  of  Clerical  and  Lay  Depu- 
ties, ...  a  table  of  contents,  a  form  or  manner 
of  printing  the  former  Preface.  .  .  .  These  were 
sent  by  the  Secretary  to  the  House  of  Clerical  and 
Lay  Deputies." 

On  page  no  of  the  same  "Journals,  etc."  {Journal  of 
the  Hou^e  of  Clerical  and  Lay  Deputies),  it  is  recorded 
as  follows  :  "  Friday,  October  16,  1789.  ...  A 
Preface  and  Table  of  Contents  were  sent  to  this  House 
by  the  House  of  Bishops,  which,  with  their  concur- 
rence, were  referred  to  the  committee  to  be  appointed 
to  superintend  the  publication  of  the  Book  about  to  be 
issued  by  the  Convention." 

On  page  1 12  (same  date),  is  this  record  : — "  Resolved; 
That  the  Rev.  Dr.  William  Smith,  etc.,  be  a  committee 
to  superintend  the  printing  of  the  Book  of  Common 
Prayer,  as  set  forth  by  this  Convention,  and  that  they 
advise  with  any  person  or  persons  who  shall  be  ap- 
pointed by  the  House  of  Bishops  for  the  same  pur- 
pose." 

On  page  122  {Journal,  House  of  Bishops),  same  date, 
is  this  record  : — "This  House  received  from  the  House 
of  Clerical  and  Lay  Deputies  a  message  informing  that 
they  had  appointed  a  committee,  to  join  with  any  per- 
son to  be  appointed  by  this  House,  in  setting  forth  the 
Book  of  Common  Prayer.  In  consequence  of  which 
the  Right  Rev.  Bishop  White  agrees  to  assist  the  com- 
mittee in  preparing  the  book  for  publication."     This 


ENGLISH  ECCLESIASTICAL  LA  IV.  85 

action  was  taken  by  each  House  on  the  last  day  of  the 
session  of  1789. 

In  the  General  Convention  of  1792,  certain  amend- 
ments were  made  to  some  of  the  Offices,  and  a  joint 
committee  appointed  to  compare  the  Book  of  Common 
Prayer  with  the  original  Acts,  etc.  On  page  166  (" 'Jour- 
nal House  of  Bishops  ")  it  is  recorded  : 

"The  House  originated  alterations  in  the  Office  for 
Ordaining  Deacons  ;  and  alterations  of  the  Preface, 
and  sent  them  to  the  House  of  Clerical 
and  Lay  Deputies,  requesting  their  concurrence." 
Following  this,  on  the  same  page,  is  this  record:  "The 
House  received  from  the  House  of  Clerical  and  Lay 
Deputies  amendments  to  the  additions  in  the  Office 
for  Ordaining  Deacons,  and  in  the  Preface;  in  which  the 
House  concurred."  In  the  Convention  of  1789  the  Pre- 
face was  referred  to  a  committee,  but  in  the  Convention 
of  1792,  after  the  said  committee  had  reported  their 
action  in  the  matter,  the  Preface  was  amended  and 
acted  upon  by  the  Convention.  The  records  of  the  Con- 
vention of  1792  show  that  the  Preface  of  our  Prayer 
Book  is  not  the  mere  "  work  of  a  committee,"  and  that 
there  is  evidence,  conclusive  evidence,  that  it  was  form- 
ally adopted  hy  the  General  Convention,  and  is  there- 
fore an  authoritative  statement  of  what  was  the  mind 
and  purpose  of  the  Church  regarding  the  matters 
therein  set  forth. 

We  have  seen  that  the  Convention  of  1789  received 
its  authority  from  the  Churches  in  the  different  States; 
that  its  aim  was  to  form  a  union  of  these  different 
Churches,  and  complete  a  national  organization  of  the 
American  Church,  and  that  its  principal  enactments 
were  the  establishing  of  a  Constitution  and  Code  of 


86  LA  W  OF  THE  CHURCH. 

Canons,  and  the  revision  of  the  Prayer  Book  of  the 
Church  of  England,  in  order  to  adapt  it  to  the  use  of 
the  Church  in  the  United  States  of  America.  We  have 
seen,  as  one  has  said,  how  "  the  fabric  of  the  govern- 
ment of  the  Protestant  Episcopal  Church  was  founded 
upon  the  Apostolic  Rock,  and  built  up  of  the  living 
stones  of  the  English  Church." 

I  have  deemed  it  necessary  to  review,  thus,  at  some 
length,  the  history  and  proceedings  of  the  Church  dur- 
ing its  formative  period  as  a  National  Church,  believ- 
ing that  only  by  so  doing  can  we  consider  understand- 
ing^ the  question  of  the  continuing  identity  of  our 
Church  with  the  Church  of  England,  and  the  truth  of 
the  third  proposition,  which  I  would  endeavor  to  es- 
tablish, viz.:  That  the  English  Ecclesiastical  Law 
continued  to  be  the  Law  of  the  American  Church 
after  1789,  and  remains  a  part  of  the  Law  of  the 
Church  to-day,  so  far  as  it  is  applicable,  and  not  su- 
perseded by  enactments  of  our  own. 

Some,  who  deny  the  truth  of  this  proposition,  assert 
that  the  Protestant  Episcopal  Church  is  a  new  crea- 
tion, and  that  before  the  Convention  of  1789  it  was 
"  without  form  and  void,"  bound  by  no  Canons,  subject 
to  no  Law,  and  possessed  of  no  Prayer  Book;  that  the 
Convention  of  1789  formed  the  Church,  and  provided 
for  it  a  Constitution,  a  Code  of  Canons,  and  a  Liturgy  ; 
that  "the  whole  organization,  being  new,  had  no  fet- 
ters to  bind  it,  and  therefore  was  then,  and  is  now,  ab- 
solutely free  from  all  the  shackles  of  the  English  Law." 
This  idea  of  the  Church  held  by  some  members  of  the 
Convention  of  17^9,  was  most  strongly  denounced  by 
Bishop  White,  who  says,  speaking  of  those  who  im- 
plied that   there  were  no  forms  of  prayer,  no   offices, 


ENGLISH  ECCLESIASTICAL  LA  W.  87 

and  no  rubrics,  until  they  should  be  formed  by  the  Con- 
vention, "  they  did  not  carry  their  right  so  far;  but 
they  reasoned  and  expostulated  on  the  point,  with  sev- 
eral of  the  gentlemen,  to  no  purpose.  They  would  not 
allow  that  there  was  any  book  of  authority  in  exist- 
ence ;  a  mode  of  proceeding  in  which  they  have  acted 
differently  from  the  Conventions  before  and  after  them ; 
who  have  recognized  the  contrary  principle  when  any 
matter  occurred  to  which  it  was  applicable." — ("  Me- 
moirs" \st  Ed.,  pp.  177,  178.) 

And  again:  "  The  congregations  were  always  under- 
stood to  be  possessed  of  a  Liturgy,  before  the  conse- 
cration of  her  Bishops,  or  the  existence  of  her  Conven- 
tions. It  would  have  been  thought  a  strange  doctrine 
in  any  of  the  clerg}r,  had  they  pretended  that  they 
were  released  from  all  obligation  to  the  use  of  the 
Book  of  Common  Prayer,  by  the  Revolution." — {Idem, 
p.  176.) 

Citations  could  be  produced,  almost  ad  infinitum,  in 
proof  that  after  the  Revolution  the  Church  in  every 
State  believed  herself  to  be  still  possessed  of  the  Lit- 
urgy of  the  Church  of  England;  that  its  use  was  still 
obligatory  upon  the  Church,  and  must  so  continue 
until  changed  or  superseded  by  competent  and  lawful 
authority,  and  that  it  was  the  wish  and  intention  of 
the  Church  in  every  State  to  adhere  to  the  Liturgy  of 
the  Church  of  England  as  far  as  might  be  consistent 
with  the  American  Revolution  and  the  Constitutions 
of  the  various  States.  But  further  citations  on  this 
point  are  unnecessary.  The  voice  of  the  Church,  as 
expressed  in  the  separate  State  Conventions,  is,  as  we 
have  seen,  unanimous  on  that  point,  and  therefore  con- 
clusive as  to  the  mind  and  intent  of  the  Church.     The 


S3  LA  JV  CF  THE  CHURCH. 

Liturgy  of  the  Church  of  England  was  her  Liturgy, 
and  was  to  continue  to  be  her  Liturgy,  with  only  such 
alterations  as  might  be  necessary  to  make  it  conform 
to  the  law  of  the  land,  and  to  her  change  of  condition, 
from  a  dependent  to  an  independent  Church.  We 
have  seen  that  this  "  mind  and  intent "  of  the  Church 
governed  the  action  of  the  General  Conventions  of 
1789  and  1792,  and  led  them  to  set  forth,  not  a  new 
Liturgy,  but  the  old  Liturgy  of  the  Church  of  Eng- 
land, with  minor  and  necessary  alterations,  but  identi- 
cal in  every  essential,  as  the  Liturgy  of  the  Church  in 
America,  and  in  that  Liturgy  authoritatively  declared 
to  the  world,  "  that  this  Church  is  far  from  intending 
to  depart  from  the  Church  of  England  in  any  essential 
point  of  doctrine,  discipline,  or  worship,  or  further  than 
local  circumstances  require." 

In  this  review  of  the  history  of  the  Church  during  its 
formative  period  as  a  National  Church,  it  must  have  been 
plainly  apparent — as  Bishop  White  well  says  at  the 
close  of  his  "Narrative  of  Events'''' — "that  the  object 
kept  in  view,  in  all  the  consultations  held,  and  the  de- 
terminations formed,  was  the  perpetuating  of  the  Epis- 
copal Church  on  the  ground  of  the  general  principles 
which  she  had  inherited  from  the  Church  of  England, 
and  cf  not  departing  from  them,  except  so  far  as 
either  local  circumstances  required  or  some  very  im- 
portant cause  rendered  proper.  To  those  acquainted 
with  the  system  of  the  Church  of  England,  it  must  be 
evident  that  the  object  here  stated  was  accomplished 
on  the  ratification  of  the  Articles." — {''Memoirs"  1st 
Ed.,  p.  29.) 

The  "Thirty-nine  Articles  of  Religion,"  as  they 
stand  in  the  Prayer  Book  of  the  Church  of  England, 


ENGLISH  ECCLESIASTICAL  LAW.  Sg 

were  adopted  by  the  Convention  of  i.oi,  "without 
their  altering  of  even  the  obsolete  diction  in  them,  but 
with  notices  of  such  changes  as  change  of  situation 
had  rendered  necessary.  Exclusively  of  such  there  is 
one  exception — that  of  adopting  the  Article  concern- 
ing the  Creeds  to  the  former  exclusion  of  the  Athana- 
sian." — (  Wliitcs  "  Memoirs,"  1st  Ed.,  p.  28.) 

The  adduction  cf  historical  facts,  and  the  citations 
from  the  opinions  of  those  who  were  most  active  and 
influential  in  forming  and  completing  the  national 
organization  of  our  Church,  which  I  have  herein  set 
forth,  proves,  most  conclusively,  that  the  Fathers  cf 
the  American  Church,  in  all  their  proceedings,  had 
ever  in  mind  the  preservation  of  her  identity  with  the 
Church  of  England.  That  they  succeeded  therein, 
and  that  the  Church  in  America,  after  her  organiza- 
tion as  a  National  Church  in  1789,  still  preserved  her 
identity  in  all  essential  features  with  the  Church  of 
England,  and  that  she  still  preserves  that  identity,  can- 
not, in  my  judgment,  be  reasonably  doubted. 

It  is  manifested  in  the  authoritative  use  of  a  Lit- 
urgy, that  is,  in  every  essential  feature  identical  with 
the  Liturgy  of  the  Church  of  England  ;  in  the  adoption 
of  the  Articles  of  Religion,  as  set  forth  by  the  Church 
of  England,  with  only  slight  variations;  in  an  adher- 
ence to  the  same  Faith,  complete  and  undefined;  in 
the  use  of  the  same  Sacraments;  in  the  Episcopal  Order, 
transmitted  and  received  from  the  Church  of  England; 
and,  as  I  shall  endeavor  to  prove,  in  the  acceptance 
and  recognition  of  the  binding  force  and  obligation  of 
the  discipline  of  the  Church  of  England — the  Ecclesi- 
astical Law  of  that  Church — so  far  as  it  is  applicable, 
and  not  superseded  by  civil  or  canonical  enactments. 


9o 


LAW  OF  THE  CHURCH. 


This  question  of  identity  arose  in  the  General  Con- 
vention of  1814,  and  was  so  clearly  and  unqualifiedly 
answered  in  the  affirmative  that  it  ought  to  settle  the 
question  forever.  The  question  regarding  the  identity 
of  the  Church  arose  from  a  statement  made,  "  that  in 
some  cause  or  causes  pending  in  the  courts,  this  iden- 
tity had  been  denied." — {White's  "  Memoirs"  \st  Ed., 
p.  297.) 

He  further  says  {Idem, p.  297) :  "It  being  foreseen 
that  this  pretence  [the  non-identity  of  the  Church]  will 
be  set  up  whenever  the  appeal  shall  come  on  in  Wash- 
ington, there  was  supposed  to  be  a  call  for  the  declara- 
tory instrument."  It  is  as  follows:  "The  following 
declaration  was  proposed  and  agreed  to:  It  having 
been  creditably  stated  to  the  House  of  Bishops  that, 
on  questions  in  reference  to  property  devised  before 
the  Revolution  to  congregations  belonging  to  'the 
Church  of  England,'  and  to  uses  connected  with  that 
name,  some  doubts  have  been  entertained  in  regard  to 
the  identity  of  the  body  to  which  the  two  names  have 
been  applied,  the  House  think  it  expedient  to  make 
the  declaration,  and  to  request  the  concurrence  of  the 
House  of  Clerical  and  Lay  Deputies  therein,  that 
1  the  Protestant  Episcopal  Church  in  the  United 
States  of  America  '  is  the  same  body  heretofore  known 
in  these  States  by  the  name  of 'the  Church  of  England'; 
the  change  of  name,  although  not  of  religious  princi- 
ple in  doctrine,  or  in  worship,  or  in  discipline,  being 
induced  by  a  characteristic  of  the  Church  of  England, 
supposing  the  independence  of  the  Christian  Churches, 
under  the  different  sovereignties,  to  which,  respective- 
ly, their  allegiance  in  civil  concerns  belongs.  But  that 
when  the  severance   alluded   to  took  place,  and  ever 


ENGLISH  ECCLESIASTICAL  LAW.  9r 

since,  this  Church  conceives  of  herself  as  professing 
and  acting  on  the  principles  of  the  Church  of  England, 
is  evident  from  the  organization  of  our  Conventions, 
and  from  their  subsequent  proceedings,  as  recorded  on 
the  Journals;  to  which,  accordingly,  this  Convention 
1  refer  for  satisfaction  in  the  premises.  But  it  would  be 
contrary  to  fact,  were  any  one  to  infer  that  the  disci- 
pline exercised  in  this  Church,  or  that  any  proceedings 
therein  are  at  all  dependent  on  the  will  of  the  civil  or 
of  the  ecclesiastical  authority  of  any  foreign  country. 
The  above  declaration  having  been  communicated  to 
the  House  of  Clerical  and  Lay  Deputies,  they  returned 
for  answer  that  they  concurred  therein." — {Perry  s 
"  Reprint  Jour.   Con."  Vol.  I.,  pp.  431,  432.) 

On  page  409  ("  Journal  of  the  Cause  of  Clerical  and 
Lay  Deputies"  1814),  it  is  recorded  that  the  "declara- 
tion was  concurred  in  and  returned  to  the  House  of 
Bishops." 

No  stronger  proof  could  be  desired,  upon  the  ques- 
tion of  identity,  than  this  declaration  of  the  General 
Convention  of  1814,  a  distinct  affirmance,  by  the 
body  with  the  changed  name,  of  its  own  identity.  But 
if  this  be  not  sufficient,  the  contingency  for  which, 
as  Bishop  White  says,  the  Convention  provided,  did 
arise,  and  the  appeal  of  the  case  referred  to  came  be- 
fore the  Supreme  Court  at  Washington  the  following 
year,  and  the  Court  unanimously  confirmed,  in  effect, 
the  declaration  of  the  General  Convention,  that  "  The 
Protestant  Episcopal  Church  in  the  United  States  of 
America "  is  the  same  body  formerly  known  in  the 
States  as  "  The  Church  of  England,"  and  that  property 
devised  before  the  Revolution  to  congregations  belong- 
ing to  the  Church  of  England  is   now  the  property  of 


92  LA  W  OF  THE  CHURCH. 

the  Protestant  Episcopal  Church.  The  Court  also 
declared  that  certain  Acts  of  the  Legislature  of  Vir- 
ginia, so  far  as  they  went  to  divest  the  Episcopal  Church 
of  property  acquired  by  donation  previous  to  the 
Revolution,  were  unconstitutional  and  inoperative. 
— (Territt  et.  al.  v.  Taylor  et.  al.,  9  Cranck,  43;  see 
also    Mason  ct.  al.   v.   Muncaster   et.    al.,  9    Wheaton, 

445-) 

Further  comment  or  citation  of  authorities  on  this 

point  is  unnecessary. 

Having  proved  that  the  American  Church  still  re- 
tains her  identity  with  the  Church  of  England,  let  us 
now  turn  to  the  direct  consideration  of  the  main  prop- 
osition, I  would  seek  to  prove,  viz.,  that  the  English 
Ecclesiastical  Law  continued  lo  be  a  part  of  the  law 
of  the  American  Church  after  its  organization,  and  is 
a  part  of  that  law  to-day,  so  far  as  it  is  applicable,  and 
not  superseded  by  enactments  of  our  own. 

First.  What  was  the  intent  of  the  Church  as  to  the 
continuing  force  and  obligation  of  the  English  Eccles- 
iastical Law  ?  The  historical  facts  and  opinions 
before  adduced  clearly  show  that  up  to  the  time  of 
the  holding  of  the  General  Convention  in  1789,  the 
intent  of  the  Churches  in  the  different  States  was  to  re- 
tain that  Law,  and  to  acknowledge  its  continuing  force 
and  obligation.  Did  the  General  Conventions  of  1789 
and  1792,  and  the  subsequent  Conventions,  affirm  and 
continue  that  intent  ? 

I  hold  that  they  did,  and  that  they  so  explicitly  de- 
clared. I  also  hold  that  they  were  under  what  Bishop 
White  called  an  "antecedent  obligation"  not  to  depart 
from  the  discipline  of  the  Church  of  England. 

In  the  Preface  of  the  Prayer  Book,  which,  as  I  have 


ENGLISH  ECCLESIASTICAL  LAW.  93 

snown,  was  proposed  in  the  General  Convention  of 
1789  and  formally  adopted  by  the  General  Convention 
of  1792,  it  is  solemnly  declared  that  "This  Church  is 
far  from  intending  to  depart  from  the  Church  of  Eng- 
land in  any  essential  point  of  doctrine,  discipline  or 
worship,  or  further  than  local  circumstances  require." 
And  in  the  same  Preface  it  is  declared,  in  order  to 
make  still  clearer  the  mind  and  intent  of  the  Church, 
that  "  in  every  Church,  what  cannot  be  clearly  deter- 
mined to  belong  to  doctrine  must  be  referred  to  disci- 
pline'' 

I  need  not  stop  to  argue  that  by  the  "discipline"  of 
the  Church  is  meant  the  law  of  the  Church,  that  "  dis- 
cipline "  embraces  law,  and  that  the  "  discipline  "  of  the 
Church  comprises  the  whole  body  of  Ecclesiastical 
Law  by  which  the  Church  is  governed. 

Judge  Hoffman,  in  his  "Law  of  the  Church"  {p.  39 
ct  scq.),  discusses  this  question,  and  proves  conclu- 
sively that  "  discipline  "  embraces  law. 

The  Courts  have  always  interpreted  the  "discipline" 
of  the  Church  as  meaning  the  law  of  the  Church,  and 
they  use  the  words  interchangeably. — {Sohier  v.  Trinity 
Church,  109  Mass.,  1;  Watson  v.  Jones,  13  Wall.,  679; 
Chase  v.  Cheney,  58  ///.,  509;  Pounder  v.  Ashe,  44  Neb., 
672  ;  Christ  Church  v.  Phillips,  5  Del.  Ch.  P.p.,  429; 
Ger.  Ref  Ch.  v.  Scibert,  3  Barr,  282  ;  Gaff  et.  al.  v. 
Greer  et.  al.,  88  Ind.,  122  ;  White  Lick  Quaker  Case, 
89  Ind.,  136;  Stack  v.  OHara,  98  Penn.  St.  Pep  ,  213.) 

It  was  to  prevent  any  question  arising  about  her  in- 
tent as  to  the  continuing  force  and  obligation  of  the 
English  Ecclesiastical  Law,  that  the  Church,  at  the 
beginning  of  her  existence  as  a  National  Church, 
made  this  official  declaration  and  placed  it  on  her  very 


94  LA  W  OF  THE  CHURCH. 

forefront,  that  she  was  "  far  from  intending  to  depart 
from  the  Church  of  England  in  any  essential  point  of" 
Ecclesiastical  Law,  "  further  than  local  circumstances 
require." 

Previous  to  the  General  Convention  of  1792,  the 
House  of  Bishops  had  expressed  an  opinion  regard- 
ing a  question  as  to  the  exact  form  in  which  the 
Apostles'  Creed  should  be  printed  in  the  Prayer 
Book,  viz.,  that  it  was  "a  duty  to  maintain  the  prin- 
ciple that  the  Creed,  as  in  the  English  Book,  must  be 
considered  as  the  Creed  of  the  Church  until  altered  by 
the  consent  of  both  Houses,  which  was  not  yet  done." 
—{Whites  "Memoirs"  1st  Ed.t  p.  183.)  The  General 
Convention  of  1792  affirmed  the  position  taken  by  the 
House  of  Bishops,  that  the  Prayer  Book  of  the  Church 
of  England  is  binding,  except  in  so  far  as  "  altered  by 
the  consent  of  both  Houses"  of  Convention. 

The  General  Convention  of  1808  still  more  explicitly 
declared  the  intent  of  the  Church  as  to  the  continuing 
force  and  obligation  of  the  English  Ecclesiastical  Law 
upon  the  American  Church.  On  the  third  day  of  the 
session,  May  19,  1808,  the  deputies  from  the  Church 
in  Maryland  communicated  to  the  House  that  they 
had  been  instructed  by  the  Convention  of  the  Church 
in  that  State  "  to  call  the  attention  of  the  General 
Convention  to  the  expediency  of  adopting  the  English 
Canon  concerning  marriages,  and  inserting  the  same  in 
future  editions  of  the  Prayer  Book."  The  Canon  re- 
ferred to  is  Canon  99  of  the  Code  of  Canons  of  1603. 
Acting  on  this  request,  the  House  adopted  a  resolution 
referring  the  communication  to  the  House  of  Bishops, 
with  a  request  that  they  should  consider  it  and  "  make 
any  communication  to  this   House    which   they  may 


ENGLISH  ECCLESIASTICAL  LA  IV.  95 

deem  proper."  The  resolution,  with  the  communica- 
tion referred  to,  was  then  sent  to  the  House  of  Bishops. 
— (Perry's  "Jour.  Con."  Vol.  I.,  pp.  341,  342.) 

On  May  21st,  the  House  of  Bishops  sent  to  the 
Lower  House  a  message,  in  part  as  follows:  "The  House 
of  Bishops  having  taken  into  consideration  the  mes- 
sage sent  to  them  by  the  House  of  Clerical  and  Lay 
Deputies,  relative  to  the  subject  of  marriage,  as  con- 
nected with  the  table  of  degrees  within  which,  accord- 
ing to  the  Canons  of  the  Church  of  England,  marriage 
cannot  be  celebrated,  observe  as  follows  : 

"Agreeably  to  the  sentiment  entertained  by  them  in 
relation  to  the  whole  Ecclesiastical  system,  they 
consider  that  table  as  now  obligatory  on  this  Church, 
and  as  what  will  remain  so;  unless  there  should  here- 
after appear  cause  to  alter  it,  without  departing  from  the 
Word  of  God,  or  endangering  the  peace  and  good 
order  of  this  Church." — (Perry  s  "Jour.  Con."    Vol.  I., 

A  355) 

It  is  a  plain,  explicit,  unequivocal  statement  of  the 
House  of  Bishops  (and,  it  may  be  reasonably  inferred, 
of  the  House  of  Clerical  and  Lay  Deputies  also,  as  the 
Journal  of  the  Convention  records  no  dissenting  voice 
when  the  message  was  read  therein),  of  their  opinion 
as  to  the  "  continuing  force  and  obligation  of  the  Eng- 
lish Ecclesiastical  Law  upon  the  American  Church." 
It  is  a  positive  declaration  that  "  the  whole  Ecclesiastical 
system"  of  the  Church  of  England  (including  of  course 
the  Common  Law  Ecclesiastical,  as  well  as  the  Canons 
of  1603),  so  far  as  applicable  to  our  local  circum- 
stances and  not  superseded  by  enactments  of  our  own, 
is  still  "  obligatory  on  this  Church"  and  is  to  remain 
so,  until  it  is  altered  by  competent  and  lawful  authority. 


g6  LAW  OF  THE  CHURCH. 

It  was  also  declared  by  the  General  Convention 
of  1814,  as  before  shown,  that  the  "change  of  name" 
did  not  work  a  change  in  "  discipline,"  in  the  gen- 
eral Law  of  the  Church,  "  but  that  when  the  severance 
alluded  to  took  place,  and  ever  since,  this  Church 
conceives  of  herself  as  professing  and  acting  on  the 
principles  of  the  Church  of  England." — {Perry  s  "Jour. 
Con."  Vol.  I., p.  431.) 

These  citations  prove  conclusively  the  intent  of  the 
Church  regarding  the  English  Ecclesiastical  Law,  that 
she  was  "far  from  intending  to  depart  from  the  Church 
of  England  in  any  essential  point "  of  Ecclesiastical  Law 
"further  than  local  circumstances"  might  require;  a  di- 
rect avowal  that  in  refusing  to  depart  therefrom  she  did 
intend  to  adhere  to  the  Ecclesiastical  Law  of  England  so 
far  as  it  was  applicable  and  not  superseded  by  any  en- 
actments of  her  own.  And  when  she  was  requested 
to  enact  a  portion  of  that  Law  as  the  Law  of  the  Church, 
she  unhesitatingly  replied  that  it  was  unnecessary, 
as  the  whole  Ecclesiastical  Law  of  the  Church  of  Eng- 
land was  "now  obligatory  on  this  Church." 

Having  proven  that  it  was  the  intent  of  the  Church 
to  adhere  to  the  English  Ecclesiastical  Law,  I  will 
next  endeavor  to  prove  that  the  Church  was  under  an 
"antecedent  obligation"  not  to  depart  therefrom. 

In  order  to  secure  the  consecration  of  American 
Bishops  from  the  hands  of  the  English  Bishops,  the 
American  Church  made  a  Concordat,  not  under  that 
name,  perhaps,  or  explicitly  described  as  such,  but 
none  the  less  a  Concordat  in  substance,  with  the 
Church  of  England,  that  if  her  request  for  the  conse- 
cration of  American  Bishops  was  granted,  she,  on  her 
part,  would  retain  "  the  same  discipline  and  forms  of 


ENGLISH  ECCLESIASTICAL  LA  IV.  q7 

worship,  as  far  as  was  consistent"  with  the  Constitu- 
tions of  the  States. 

The  Convention  at  Philadelphia,  1785,  addressed  a 
petition  to  the  Archbishops  of  Canterbury  and  York 
and  the  Bishops  of  the  Church  of  England,  praying 
them  to  "confer  the  Episcopal  character"  on  such 
persons  as  might  be  recommended  by  the  Conventions 
of  the  several  States. 

At  the  same  Convention,  the  Liturgy  of  the  Church 
had  been  subjected  to  many  proposed  alterations, 
and  a  proposed  Constitution  had  also  been  prepared. 
Many  of  the  alterations  in  the  "Proposed  Book  of 
Common  Prayer"  were  of  such  a  character,  and  so 
radical,  as  to  meet  with  general  disapprobation,  and 
some  of  the  clergy,  as  Bishop  White  tells  us  (''Mem- 
oirs," 1st  Ed.,  p.  115),  "  had  been  very  early  in  convey- 
ing to  their  clerical  acquaintance  in  England  an  unfav- 
orable representation  of  the  spirit  of  the  proceedings" 
of  the  Convention  of  1785.  From  these  reports  the 
English  Prelates  were  apprehensive  that  the  Church 
in  America  intended  a  further  departure  from  the  doc- 
trine, discipline  and  worship  of  the  Church  of  England 
than  was  necessary.  In  their  reply  to  the  petition  of 
the  Philadelphia  Convention  (February  24,  1786),  the 
English  Bishops,  after  assuring  the  members  of  the 
Convention  of  their  desire  to  comply  with  the  prayer 
of  their  address,  conclude  their  reply  as  follows: 
"  While  we  are  anxious  to  give  every  proof  not  only 
of  our  brotherly  affection,  but  of  our  facility  in  for- 
warding your  wishes,  we  cannot  but  be  extremely 
cautious,  lest  we  should  be  the  instruments  of  estab- 
lishing an  Ecclesiastical  system  which  will  be  called  a 
branch  of  the  Church  of  England,  but  afterwards  may 


98  LA  W  OF  THE  CHURCH. 

possibly  appear  to  have  departed  from  it  essentially, 
either  in  doctrine  or  in  discipline." — {Perry  s  "Jour. 
Con.,"  Vol.  I.,/.  36.) 

The  next  Convention,  which  met  in  Philadelphia  in 
June,  1786,  proceeded  at  once  to  reverse  those  decisions 
of  the  former  Conventions  which  might  seem  to  any  to 
indicate  a  purpose,  on  their  part,  of  departing  from 
the  Church  of  England  "  either  in  doctrine  or  in  disci- 
pline," as  indicated  in  the  letter  of  the  English  Prel- 
ates. This  action  was  taken,  as  Bishop  White  tells 
us,  "without  even  an  opposition." — {"Memoirs"  1st 
Ed.,  p.  126.) 

The  Convention  also  adopted  a  resolution  that  a 
committee  be  appointed  to  draft  an  answer  to  the  let- 
ter of  the  Archbishops  and  Bishops  of  England,  such 
"as  will  satisfy  them  that  no  such  alterations  as  would 
be  any  essential  deviation  from  the  Church  of  Eng- 
land have  been  adopted  or  intended." — {Perry  s  "Jour. 
Con.,"  Vol.  I.,  p.  37.) 

The  answer  was  formally  adopted  and  signed  by  the 
members  of  the  Convention  on  June  26,  1786,  in  which 
they  said  :  "  While  doubts  remain  of  our  continuing  to 
hold  the  same  essential  articles  of  faith  and  discipline 
with  the  Church  of  England,  we  acknowledge  the  pro- 
priety of  suspending  a  compliance  with  our  request." 
With  this  acknowledgment  of  the  justice  of  the  posi- 
tion of  the  English  Prelates,  they  then  proceed  to 
make  this  declaration  and  promise  to  the  Bishops  of 
the  Church  of  England:  "  We  are  unanimous  and  ex- 
plicit in  assuring  your  lordships  that  we  neither  have 
departed,  nor  propose  to  depart,  from  the  doctrines  of 
your  Church.  We  have  retained  the  same  discipline 
and  forms  of  worship  as  far  as  was  consistent  with  our 


ENGLISH  E  CCL  E  SI  A  STICAL  LAW.  99 

civil   Constitutions." — {Perry s  "Jour.   Con."    Vol.   I., 
p.  44.) 

Before  receiving  this  letter  from  the  Convention,  the 
Archbishop  of  Canterbury  wrote,  under  date  of  July 
4,  1786,  to  the  Committee  of  the  General  Conven- 
tion, communicating  the  Act  of  Parliament  which  had 
been  passed  to  permit  the  consecration  "  to  the  office 
of  Bishop  persons  being  subjects  or  citizens  of  coun- 
tries outside  of  his  majesty's  dominions."  The  letter 
concludes  as  follows  :  "  But  whether  we  can  consecrate 
any  or  not,  must  yet  depend  on  the  answers  we  may 
receive,  to  what  we  have  written." — {Perry's  "Jour,  of 
Con.;'  Vol.  I.,  p.  55.) 

The  Convention  of  1786,  which  had  adjourned  in 
June  to  await  the  replies  of  the  English  Bishops,  re- 
assembled at  Wilmington,  Del.,  on  October  10,  1786, 
and  an  Act  was  agreed  upon  and  established,  entitled, 
"  An  Act  of  the  General  Convention  of  the 
Clerical  and  Lay  Deputies  of  the  Protestant 
Episcopal  Church  in  the  States  of  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  and 
South  Carolina,  held  at  Wilmington,  in  the 
State  of  Delaware,  on  Wednesday,  the  iith 
of  October,  1786." 

In  this  Act,  they  first  relate  that  "  the  said  Conven- 
tion, anxious  to  complete  their  Episcopal  system  by 
means  of  the  Church  of  England,  did  subscribe  and 
transmit  an  address  to  the  Most  Reverend  and  Right 
Reverend  the  Archbishops  of  Canterbury  and  York, 
and  the  Bishops  of  the  Church  of  England,  earnestly 
entreating  that  venerable  body  to  confer  the  Episco- 
pal character  on  such  persons  as  should  be  recom- 
mended by  this  Church  in  the  several  States  so  repre- 


ioo  LA  W  OF  THE  CHURCH. 

sented,"  and  that  they  had  "received  the  most  friendly 
and  affectionate  letters  in  answer  to  the  said  address 
from  the  said  Archbishops  and  Bishops,  opening  a  fair 
prospect  of  the  success  of  their  said  applications,  but 
at  the  same  time  earnestly  exhorting  this  Convention 
to  use  their  utmost  efforts  for  the  removal  of  certain 
objections  by  them  made."  They  then  proceed  to  de- 
clare as  follows  :  <;  In  pursuance  whereof,  this  present 
General  Convention  hath  been  called,  and  is  now  assem- 
bled, and  being  sincerely  desirous  to  give  every  satisfac- 
tion to  their  Lordships  which  will  be  consistent  with  the 
union  and  general  content  of  the  Church,  they  repre- 
sent, and  declaring  their  steadfast  resolution  to  main- 
tain the  same  essential  Articles  of  Faith  and  Discipline 
with  the  Church  of  England,  do  declare,"  etc. — {Perry  s 
"f„ur.  of  Con.;'  Vol.  !.,/>.  58.) 

This  Act  was  ordered  by  the  Convention  to  be  sent 
to  the  Archbishops  of  Canterbury  and  York,  together 
with  a  letter  in  answer  to  the  late  letters  of  those  Prel- 
ates, which  concludes  as  follows  :  "  We  have  taken 
into  our  most  serious  and  deliberate  consideration  the 
several  matters  so  affectionately  recommended  to  us 
in  those  communications,  and  whatever  could  be  done 
towards  a  compliance  with  your  fatherly  wishes  and 
advice,  consistently  with  our  local  circumstances  and 
the  peace  and  unity  of  our  Church,  hath  been  agreed 
to,  as  we  trust  will  appear  from  the  enclosed  Act  of 
our  Convention,  which  we  have  the  honor  to  transmit 
to  you,  together  with  the  Journal  of  our  proceedings." 
— (Perry' s  "Jour,  of  Con."  Vol.  I.,  p.  61.) 

Such,  in  brief,  were  the  steps  taken  by  the  Church 
in  America  for  the  obtaining  from  the  Prelates  of  the 
Church  of  England  the  consecration  of  Bishops  for  the 


ENGLISH  ECCLESIASTICAL  LAW.  101 

Church  in  America,  and  in  which  is  plainly  evidenced 
the  reasons  for  and  the  terms  of  the  Concordat  (so  far 
as  they  relate  to  the  purpose  of  this  book)  finally 
established  between  the  Church  in  America  and  the 
Church  of  England. 

First,  the  petition  of  the  American  Church  to  the 
English  Prelates,  praying  them  to  consecrate  Bishops 
for  the  Church  in  America,  then  their  reply  stating 
their  willingness  so  to  do,  provided  they  do  not  thereby 
establish  a  branch  of  the  Church  of  England  which 
shall  afterwards  "appear  to  have  departed  from  it 
essentially,  either  in  doctrine  or  in  discipline'" ;  then 
another  letter  from  the  Archbishop  of  Canterbury, 
stating  that  their  consent  to  the  consecration  of 
Bishops  for  America  will  "  depend  on  the  answers  we 
may  receive  to  what  we  have  written";  then  the  re- 
ply of  the  American  Church  in  Convention  assembled, 
assuring  the  English  Prelates  that  they  did  not  pro- 
pose to  depart  from  the  doctrines  and  discipline  of 
the  Church  of  England,  and  that  they  had  "retained 
the  same  discipline  and  forms  of  worship  as  far  as  was 
consistent"  with  the  laws  of  the  land;  then  at  the 
next  Convention,  the  Church  entered  into  a  solemn 
agreement  and  Concordat  with  the  Church  of  England, 
and  established  it  as  an  "  Act  of  this  Corporation," 
that  if  the  Bishops  of  the  Church  of  England  would 
"confer  the  Episcopal  character  on  such  persons  as 
should  be  recommended  by  the  Church  in  the  several 
States,"  she  on  her  part  agreed  and  declared  her 
"  sUadfast  resolution  to  maintain  the  same  essential 
Artie  Its  of  Faith  and  Discipline  zvith  the  Church  of 
England!' 

It  is  difficult  to  see  how  the  American  Church  could 


I02  LA  W  OF  THE  CHURCH. 

have  made  a  more  binding  Concordat  on  her  part.  It 
was  not  a  mere  resolution,  it  was  an  "  Act  of  the 
General  Convention."  She  intended  to  establish  it, 
and  did  so  establish  it,  as  a  Law  of  the  Church.  The 
Bishops  of  the  Church  of  England,  on  their  part,  ac- 
cepted and  confirmed  this  Concordat  by  their  act  in 
consecrating  the  Rev.  Drs.  White  and  Provoost 
as  Bishops  for  the  American  Church. 

The  American  Church  thus  received  certain  powers 
from  the  English  Church  under  certain  conditions,  one 
of  which  was,  that  she  was  not  to  depart  from  the 
Church  of  England  in  any  essential  point  of  Ecclesias- 
tical Law,  or  further  than  local  circumstances,  or  the 
law  of  the  land  required.  To  these  conditions,  as  the 
terms  under  which  she  received  those  powers,  she 
bound  herself  by  a  solemn  enactment  of  her  General 
Convention.  If  thereby  the  Church  bound  herself  to 
retain  the  English  Ecclesiastical  Law,  a  fact  impossi- 
ble, in  my  judgment,  of  being  controverted,  then  is  the 
English  Ecclesiastical  Law,  so  far  as  it  is  applicable  to 
our  circumstances,  and  not  superseded  by  enactments 
of  our  own,  the  Law  of  our  Church  to-day,  and  noth- 
ing but  a  repeal  thereof,  either  actual  or  plainly  im- 
plied, can  release  the  Church  from  the  binding  force 
and  obligation  of  that  Law. 

Bishops  White  and  Provoost,  who  were  consecrated 
in  accordance  with  the  terms  of  this  Concordat,  be- 
lieved the  Church  to  be  thus  bound,  and  ever  so 
maintained,  stoutly  resisting  every  attempt  that  was 
made  in  any  succeeding  General  Convention  to  depart 
therefrom. — (See  Journals  of  General  Conventions  of 
1789  and  \J92\  also,  Bishop  White's  "Memoirs"  1st 
Ed., p.  175,  et  set/.)     And  every  General  Convention  of 


ENGLISH  ECCLESIASTICAL  LAW.  103 

the  Church,  in  which  the  question  has  arisen,  has  like- 
wise so  declared  and  maintained. 

The  General  Convention  of  1808  declared  that  the 
whole  Ecclesiastical  system  of  the  Church  of  England 
(so  far,  of  course,  as  it  was  adapted  to  our  circum- 
stances and  not  superseded  by  our  own  legislation)  was 
"now  obligatory  on  this  Church,"  and  the  General 
Convention  of  1S14  declared  that  "  when  the  sever- 
ance alluded  to  took  place,  and  ever  since,  this  Church 
conceives  of  herself  as  professing  and  acting  on  the 
principles  of  the  Church  of  England." 

These  facts  evidence  the  conclusion,  in  my  opinion 
an  irresistible  one,  that  when  the  American  Church 
began  her  national  life,  she  began  it  under  an  "  ante- 
cedent obligation,"  under  a  Concordat  with  the  Church 
of  England,  that,  as  far  as  was  possible,  there  should  be 
no  essential  departure,  on  her  part,  from  the  Ecclesi- 
astical Law  of  that  Church. 

And  with  this  declaration  has  she  prefaced  her  Lit- 
urgy, and  so  long  as  that  declaration  there  remains, 
that  she  "  is  far  from  intending  to  depart  from  the 
Church  of  England  in  any  essential  point  of  doctrine, 
discipline,  or  worship,  or  further  than  local  circum- 
stances require,"  so  long  can  she  not  depart  therefrom, 
without  stultifying  herself,  and  violating  a  most  sol- 
emn legal  and  moral  obligation. 

I  have  previously  shown  that  the  Common  Law  of 
the  Colonists  included  both  the  Common  Law  and  the 
Statute  Law  of  England,  at  the  time  of  the  coloniza- 
tion of  this  country,  and  that  in  this  body  of  Colonial 
Common  Law  was  included  the  Common  Law  Eccles- 
iastical, and  the  Canon  and  Statute  Law  of  the  Church 
of  Englan'. 


104  LA  W  OF  THE  CHURCH. 

This  body  of  Colonial  Common  Law  is  the  Common 
Law  to-day,  of  every  State  in  the  Union,  with  the  single 
exception  of  the  State  of  Louisiana.  From  this  fact  may 
fairly  and  justly  be  drawn  an  argument  for  the  contin- 
ued force  of  the  Ecclesiastical  portion  of  this  Common 
Law  upon  the  American  Church.  I  but  merely  state 
the  fact  that  such  an  argument  may  justly  be  drawn 
therefrom,  without  entering  into  the  consideration 
thereof,  and  that  the  Courts  have  decided  that  the 
Common  Law  Ecclesiastical  is  included  in  the  Com- 
mon Law  now  in  force  in  the  several  States. — (See 
Crump  v.  Morgan,  3  Iredell's  Eg.  Rep,,  91  ;  Gas  kins  v. 
Gaskins,  3  Iredell's  L.  Rep.,  158  ;  Bogardus  v.  Trinity 
Church,  4  Paige's  Rep.,  177.) 

Let  us  again  apply  the  "  undeniable  proposition,"  be- 
fore stated,  to  the  facts  we  have  now  proven  and  see 
how  far  the  terms  of  that  proposition  have  been  com- 
plied with  by  these  facts.  The  proposition  is,  that  "laws 
once  in  force  over  an  organization  must  remain  in  force 
so  long  as  that  identity  continues,  unless  they  expire  by 
limitation  or  are  repealed  by  the  law-making  power!' 

It  has  been  conclusively  proven,  and  will  not,  I 
think,  be  doubted  by  any,  that  the  English  Ecclesias- 
tical Law  was  "  once  in  force  over  the  organization  " 
known  as  "The  Church  of  England  in  the  Colonies," 
and  having  once  been  in  force  it  must  have  remained 
in  force,  so  long  as  the  identity  of  that  Church  con- 
tinued, unless  it  expired  by  limitation,  or  was  lawfully 
repealed.  But  we  have  shown  that  the  Church's  iden- 
tity did  continue  ;  that  she  continued  to  be  the  same 
identical  Church,  under  the  name  of  "  Protestant  Epis- 
copal," that  she  was  under  the  name  of  "  Church  of 
England";  that  a  change  of  name  merely  works  no 


ENGLISH  ECCLESIA  S  TIC  A  L  LA  IV.  105 

change  in  identity ;  that  the  Church  herself,  speaking 
with  authority,  has  declared  "  that  the  '  Protestant 
Episcopal  Church  in  the  United  States  of  America'  is 
the  same  Body  heretofore  known  in  these  States  by 
the  name  '  of  the  Church  of  England'  "  ;  and  that  the 
highest  Courts  of  our  land  have  also  assumed  and  de- 
clared this  continued  identity  of  the  Church.  Then, 
since  the  identity  of  the  Church  has  continued,  must 
the  law  once  in  force  in  that  Church  necessarily  con- 
tinue, unless  it  has  expired  by  limitation,  or  been 
repealed  by  the  law-making  power.  But  it  has  not  ex- 
pired, could  not  expire,  by  limitation,  nor  has  it  been 
repealed  by  the  law-making  power.  On  the  contrary, 
the  law-making  power  of  the  Church,  which  is  the 
General  Convention,  has,  as  we  have  shown,  repeatedly 
declared  her  adherence  to  that  Law,  the  English  Ec- 
clesiastical Law,  once  in  force  over  her,  and  recognized 
it  as  being  still  of  force  and  obligation  upon  her.  In 
order  to  obtain  from  the  English  Church  the  consecra- 
tion of  her  Bishops  that  she  might  be  able  to  retain 
and  continue  her  Episcopal  character,  that  law-making 
power  of  the  Church  made  a  Concordat  with  the  Arch- 
bishops and  Bishops  of  the  Church  of  England,  that 
they  would  not  repeal  that  Law  once  in  force  over  her, 
and  in  her  very  Liturgy  even,  has  the  Church  placed 
the  declaration  that  she  still  retains  the  Ecclesiastical 
Law  of  the  Church  of  England.  Hence,  the  conclu- 
sion is  irresistible,  that  the  American  Church  being 
identical  and  continuous  with  the  Church  of  England, 
therefore,  the  Law  of  that  Church,  having  once  been 
in  force  over  her,  and  never  having  expired  by  limita- 
tion, nor  been  repealed  by  the  law-making  power,  took 
its  place  proprio  vigore,  and  continued  to  be,  so  far  as 


106  LA.  W  OF  THE  CHURCH. 

adapted  to  our  condition  and  circumstances,  a  part  of 
the  Law  of  the  American  Church.  That  the  English 
Ecclesiastical  Law,  with  certain  modifications,  con- 
tinues to  be  a  part  of  the  Law  regulating  the  affairs  of 
our  Church  to-day,  is  not  only  the  mind  of  the  Church 
herself,  as  we  have  seen,  it  is  also  the  opinion  of  the 
great  majority  of  the  learned  canonists  of  the  Church. 
Bishop  White,  whom  Judge  Ludlow  {Batterson  v. 
Thompson,  8  Phil.  Rep.,  251)  names,  as  "that  vener- 
able Prelate  whose  name  and  opinions  to  this  day, 
even  in  a  civil  court,  carry  with  them  great  weight," 
says  :  "  To  pray  for  our  civil  rulers  was  a  duty  bound 
on  us  by  a  higher  authority  than  that  of  the  Church. 
In  all  other  respects,  I  hold  the  former  Ecclesiastical 
system  to  be  binding." — {Appendix  to  Wilson 's  "  Life 
of  Bishop  White"  p.  341,  cited  in  Hoffman's  "  Law  of 
the  Church" p.  31.) 

Mr.  Odenheimer,  afterwards  Bishop  of  New  Jersey, 
says  :  "  It  appears  to  me  to  be  a  true  view  to  maintain 
our  right  to  the  Ante-Revolution  Canon  Law  of  the 
English  Church,  in  all  points  applicable,  and  where  it 
has  not  been  distinctly  rejected  or  provided  for  by  our 
own  canonical  legislation." — {Essay  Pub.  Alum.  Assoc., 
1841,  pp.  58,  59,  cited  in  Hoffman's  "Law  of  the 
Church?  p.  11.) 

Bishop  Hopkins,  who,  previous  to  his  entering  the 
ministry,  was  a  lawyer  of  great  ability,  says  :  "  The  Law 
of  the  Church  of  England  continues  to  be  our  Law  to 
this  day,  so  far  as  it  has  not  been  superseded  by  positive 
Ecclesiastical  legislation." — {"Law  of  Ritualism',' p.  80.) 

The  Rev.  Dr.  Hawks,  a  canonist  of  eminent  ability 
and  a  recognized  authority  on  Canon  Law,  says : 
"  The  opinions  which  were  entertained  in  the  mother 


ENGLISH  E  CCl  t,  si  A  6  TIC  A  L  LAW.  107 

country,  and  the  decisions  which  had  there  been  made 
on  matters  of  Ecclesiastical  Law  or  usage,  up  to  the 
severance  of  these  Colonies  by  the  Revolution,  were, 
as  far  as  applicable,  held  to  be  the  guide  of  the  Church 
of  England  here  ;  and  though  the  Independence  of  the 
United  States  dissolved  the  connection,  it  evidently 
did  not  destroy  the  prevailing  opinions  among  Church- 
men as  to  matters  and  usages  touching  the  Church. 
Our  branch  of  the  Catholic  Church,  in  establishing  her 
system  of  polity,  must  therefore  obviously  have  com- 
menced her  career  with  opinions,  feelings  and  habits,  all 
derived  from  her  former  association  with  the  Church  of 
England.  To  the  Common  and  Canon  Law  of  England 
we  must  therefore  look,  if  we  would  fully  understand 
the  origin  of  much  of  the  Law  of  our  own  Church." — 
("  Constitution  and  Canons" p.  265.) 

In  the  case  of  the  Rev.  Cave  Jones,  we  have  the 
opinion  of  Thomas  Addison  Emmet,  one  of  the  ablest 
lawyers  of  his  day.  After  stating  that  Law  is  prior  to 
the  existence  of  a  State,  and  that  it  comes  by  inherit- 
ance, he  proceeds  to  say  :  "  So  is  it  with  our  Ecclesi- 
astical Government.  In  organizing  and  becoming 
members  of  the  Protestant  Episcopal  Church,  no  one 
considered  himself  as  becoming  a  member  of  a  new 
religion,  or  as  adopting  a  different  form  or  rule  of 
Ecclesiastical  Government,  except  so  far  as  depended 
upon  the  connection  in  England  between  Church  and 
State,  and  the  regulations  of  that  country  produced 
by  the  King's  being  the  head  of  the  Church.  These 
were  all  necessarily  rejected  as  being  inapplicable  to 
our  situation  ;  but  in  every  other  respect,  the  rules  and 
laws  of  our  Mother  Church,  where  they  can  be  applied, 
are  the  Common  Law   of  our  own   religious   associa- 


io8  LA  W  OF  THE  CHURCH. 

tion." — ("  Report  of the  Case,"  etc.,  p.  493,  New  York, 
181 1  ;  cited  in  Hoffman 's  "Lata  of  the  Church"  p.  38, 
Note.) 

I  will  cite  but  one  more  of  the  many  opinions  that 
can  be  adduced  in  support  of  the  proposition  under 
consideration,  and  that  one  that  is  more  than  an  opin- 
ion ;  one  that  has  been  recognized  by  the  Courts  as  an 
authority  on  Ecclesiastical  Law,  and  by  them  cited 
with  approval.  I  refer  to  "  The  Law  of  the  Church^ 
by  Judge  Hoffman,  at  one  time  Vice-Chancellor  of  the 
State  of  New  York  ;  a  work  from  which  I  have  already 
made  many  citations  in  support  of  the  different  propo- 
sitions sought  to  be  established. 

In  the  summing  up  of  his  argument  that  the  Church 
continued  to  be  the  same  in  every  essential  feature  of 
"  doctrine,  discipline,  and  worship  "  that  she  was  be- 
fore the  Revolution,  and  after  stating  that  the  Church 
in  one  of  her  most  solemn  acts  declared  that  she  meant 
not  to  depart  from  the  Church  of  England  in  discipline 
further  than  local  circumstances  required, he  says  {p  41): 
"  When  we  find  that  the  body  of  English  Ecclesiastical 
Law  was  an  undoubted  part  of  discipline  in  that  Church 
and  in  the  Colonial  Church  ;  when  we  find  no  discrim- 
ination made  between  what  of  discipline  is  binding 
and  what  is  annulled,  the  conclusion  seems  irresistible, 
that  this  Law,  with  necessary  modifications,  retained 
the  same  authority  after  the  Revolution  which  it  pos- 
sessed before." 

And  again,  after  speaking  of  the  alterations  in  the 
discipline  and  the  Liturgy  of  the  Church,  made  neces- 
sary by  the  Revolution,  and  of  the  Canon  Laws  of  the 
Church,  and  the  Civil  Laws  of  the  States,  which  com- 
prise a  body  of  regulations  for  the  Church,  he  says  (f>. 


ENGLISH  ECCLESIASTICAL  LA  W  109 

64)  :  "  But  there  will  yet  remain  many  cases  not  pro- 
vided for.  In  these  I  submit  we  are  to  ascertain  what 
was  the  law  of  the  English  Church.  By  that,  such 
cases  are  presumptively  to  be  decided;  leaving  it  to  be 
shown  that  such  law  is  repugnant  to  some  principle, 
settled  custom,  or  institution  of  our  own,  secular  or 
ecclesiastical."  The  Civil  Courts,  whenever  the  ques- 
tion has  come  before  them,  have  uniformly  recognized 
the  truth  of  the  proposition  contended  for,  and  so 
clearly  and  convincingly  set  forth  by  Judge  Hoffman, 
that  the  English  Ecclesiastical  Law,  with  certain  ne- 
cessary modifications,  is  of  force  in  the  American 
Church  to-day. 

In  Lynd  v.  Menzies  et.  al.  (33  N.  J.  L.  Rep.  [4  Vroom\ 
162),  the  direct  question  as  to  what  laws  were  of  force 
and  obligation  in  the  Protestant  Episcopal  Church 
came  directly  before  the  Court.  Chief-Justice  Beas- 
ley,  in  delivering  the  opinion  of  the  Supreme  Court, 
declared:  "The  English  Ecclesiastical  Law, although 
somewhat  modified  by  new  circumstances  and  by 
American  usages  and  statutes,  constitutes  the  substan- 
tial basis  of  the  law  controlling  the  affairs  of  this  par- 
ticular Church." 

In  Livingston  v.  Rector  et.  al.  (45  N.  J.  L.  Rep.  [16 
Vroom]  230),  the  Supreme  Court  of  New  Jersey  again 
decided  the  same  question.  The  Court  held  that 
"  The  English  Ecclesiastical  Law  forms  the  basis  of 
the  law  regulating  the  affairs  of  the  Episcopal  Church 
in  this  country,  and  is  in  force,  except  so  far  as  it  has 
been  modified  and  changed  by  statute,  and  by  the 
usages  and  Canons  of  the  Church." — {Lynd  v.  Men- 
zies et.  al.  [4  Vrooni],  162.  Hoffman's  "Laiv  of  the 
Church"  14,  30,  34,  64,  cited  and  approved.) 


i jo  LAW  OF  THE  CHURCH. 

In  Jennings  v.  Scarborough  (56  N  J.  L.  Rep.  [27 
Vroom\  401,  decided  in  1894),  the  Supreme  Court 
again  affirmed  the  decision  of  the  Court  in  Lynd  v. 
Menzies,  et.  al.  (4  Vroom,  162.) 

In  the  case  of  Batter  son.  et.  al.  v.  Thompson  et.  al. 
(8  Phil.  Rep.,  251),  the  Court  declares  :  "I  quite  con- 
cur with  Chief-Justice  Beasley  in  the  remark  made  by 
him  in  the  case  heretofore  cited.  {Lynd  v.  Menzies, 
etc.)" 

This  decision  of  the  New  Jersey  Supreme  Court 
(Lynd  v.  Menzies,  etc.)  has  been  cited  with  approval, 
by  the  courts  in  many  of  the  States,  and  I  can  find  no 
case  reported  wherein  its  decision  has  been  overruled, 
or  even  questioned,  and  until  it  is  overruled,  it  must  be 
taken  as  voicing  the  opinions  of  the  courts  as  to 
the  continuing  force  of  the  Ecclesiastical  Law  of  the 
Church  of  England  upon  the  American  Church.  The 
courts  of  this  country  have  universally  acted  upon  this 
assumption  in  deciding  the  Ecclesiastical  cases  which 
have  come  before  them. — (See  Hecney  v.  St.  Peter's 
Church,  2  Edward's  Ch.  Rep.,  608;  Humbert  v.  St. 
Stephen's  Church,  1  Edward's  Ch.  Rep.,  308;  Chase  v. 
Cheney,  58  ///.  Rep.,  509;  Crump  v.  Morgan,  3  Iredell's 
Eq.  Rep.,  91 ;  Gaskinsw.  Gas  kins,  3  Iredell's  L.  Rep.,  158; 
Terrett  v.  Taylor,  9  Cranch,  43;  Watson  v.  Jones,  13 
Wall.,  679;  Society,  etc.,  v  New  Haven,  8  Wheat  on, 
464;  Mason  v.  Muncaster ,  9  Wheat  on,  445.) 

The  conclusion  derived  from  the  consideration  of 
the  facts  before  adduced,  and  from  the  opinions  and  au- 
thorities above  cited,  is  irresistible,  that  the  English  Ec- 
clesiastical Law,  with  certain  necessary  modifications, 
forms  the  basis  of  the  Law  regulating  the  Protestant 
Episcopal  Church,  and  is  in  force  and  of  obligation  in 


ENGLISH  ECCLESIASTICAL  LAW.  in 

that  Church  to-day,  so  far  as  it  is  applicable,  and  not 
superseded  by  our  own  civil  or  Ecclesiastical  enact- 
ments. 

These  modifications  have  been  most  clearly  and  con- 
cisely stated  by  Judge  Hoffman,  and  as  his  words  have 
received  the  approval  of  the  courts  {Livingston  v.  Rec- 
tor et  a/.,  \6  Vroom,  230),  I  quote  them  on  this  point. 
After  stating  "  that  upon  every  question  of  construc- 
tion of  a  phrase  or  precept,  its  admitted  acceptation  in 
the  English  Law  is  to  prevail  until  otherwise  expressly 
interpreted,"  he  says  :  "  I  may  state  the  result  in  these 
propositions : 

**  I.  The  English  Canon  Law  governs,  unless  it  is  incon- 
sistent with,  or  superseded  by  a  positive  institution 
of  our  own. 
"  2.  Unless  it  is  at  variance  with  any  civil  law  or  doc- 
trine of  the  State,  either  recognized  by  the  Church, 
or  not  opposed  to  her  principles. 
"  3.  Unless  it  is  inconsistent  with  or  inapplicable  to 
that  position  in  which  the  Church  in  these  States 
is  placed. 
"  And  let  it  not  be  thought,"  he  says,   "  that  in  this 
loyalty  to  the  English  Law  we  abjure  the  liberty  of  a 
National  Church,  or  admit  a  subserviency  to  a  foreign 
authority.      ...     In  submitting  to  the  guidance  of 
English  authority,  we  render  no  other  allegiance  than 
every  honest  judge  in  the  land  renders  to  the  decisions 
of  Westminster  Hall  in  civil  matters.     These  decisions 
are  the  witnesses  and  testimonials  of  the  law,  liable  to 
be  discredited,  open  to  controversy ;  but  standing,  until 
this  is  done,  sure  and  faithful  witnesses.    So  the  cases  in 
the  Ecclesiastical  Courts  are  the  credible  expositors  of 
English  Canon  Law,  and  it  is  that   Law  to  which  we 


112  LA  W  OF  THE  CHURCH. 

are  to  resort  for  guidance  in  all  unsettled  points.  We 
shall  find  this  submission  more  useful,  and  more  noble 
than  the  license  and  the  anarchy  of  an  unrestricted,  un- 
directed, and  unenlightened  judgment." — ("  Law  of 
the  Church" pp.  64,65.) 

I  know  of  no  more  fitting  words  with  which  to  close 
this  discussion  of  the  Sources  and  Sanctions  of  Amer- 
ican Church  Law,  and  of  the  force  and  obligation 
therein  of  the  English  Ecclesiastical  system,  than  the 
words,  so  true  and  expressive,  of  this  honored  son  of 
the  Church.  In  his  "Law  of  the  Church"  (so  many  times 
referred  to  in  this  work,  and  from  which  I  have  already 
quoted  so  freely),  Judge  Hoffman  has  rendered  most 
valuable  service,  in  helping  to  make  clear  the  inter- 
pretation and  application  of  the  Church's  Laws,  and  I 
have  less  hesitation  in  making  his  language  my  own, 
for  the  reason  that  the  work  referred  to  has  long 
been  out  of  print,  and  is,  therefore,  accessible  to  but 
few  of  the  clergy  and  laity  of  the  Church  to-day.  His 
words  may  well  be  pondered  by  those  who  would  treat 
the  American  Church  as  a  newly-reared  fabric,  the 
creation  of  a  few  clergy  and  laity  in  1789,  "without 
fathers  and  without  brethren — as  if  it  had  fallen, 
like  the  Roman  shield,  immediately  from  Heaven." 
To  those  who  would  sever  the  ties  that  bind  us  to 
our  Mother  Church,  who  would  deny  us  our  right- 
ful inheritance  in  that  great  body  of  Ecclesiastical 
Common  Law,  which  is  but  the  "  wisdom,  counsel,  ex- 
perience and  observation  of  many  ages  of  wise  and  ob- 
serving men,"  I  would  most  earnestly  commend  these 
wise  and  thoughtful  words  of  Judge  Hoffman  :  "What 
advantage  can  we  reap  by  severing  the  tie  with  the 
Church  of  England,  in  this  particular,  when  the  wisest 


ENGLISH  ECCLESIASTICAL  LA  IV.  113 

of  our  fathers  cherished  the  connection  in  every  other, 
as  the  pillar  and  foundation  of  truth?" 

"  And  what  advantages  do  we  not  lose,  when  we  dis- 
claim this  healthful  and  time-honored  union  ?  Looking 
at  the  question  merely  as  a  lawyer  and  searcher  for 
truth,  we  abandon  (and  for  a  dim,  untrodden  path,)  the 
road  illumined  by  the  shining  lights  of  English  intel- 
lect in  the  Church  and  on  the  bench.  For  our  instruc- 
tion and  guidance  we  have  the  well-known  names  of 
Coke,  Holt  and  Hardwicke,  of  Nichols,  Stowell  and 
Lee,  in  the  tribunals  of  justice;  of  Ridley,  Gibson, 
Stillingfleet,  and  a  cloud  of  others,  among  the  English 
canonists.  Under  their  auspices,  we  shall  find  '  happier 
walls '  than  our  own  abilities  can  rear,  or  our  own  fan- 
cies can  devise.  Here  we  may  attain  to  certainty,  the 
mother  of  quietness  and  repose." 


PART  TWO. 
Zhe  Xaw  of  tbe  Hmerican  Cburcb. 


CHAPTER  I. 

OF  THE   INCORPORATION   OF   CHURCHES. 

WHILE  any  number  of  persons  may  form 
themselves  into  an  organization  for  the 
purpose  of  conducting  their  public  relig- 
ious services  in  conformity  to  the  Liturgy  of  the  Prot- 
estant Episcopal  Church,  and,  by  further  conforming  to 
the  rules  and  regulations  of  the  Ecclesiastical  authority 
thereof,  become  component  parts  of  that  Church,  and 
entitled  to  certain  Ecclesiastical  rights  and  privileges, 
they  do  not  thereby  become  a  corporate  body,  entitled 
to  corporate  powers.  In  order  to  secure  the  benefits, 
rights  and  powers  of  a  corporate  body,  the  Ecclesias- 
tical organization  must  become  incorporated,  under 
the  provisions  of  some  special  law,  or,  as  is  usually  the 
case,  some  general  law  relating  to  the  incorporation 
of  religious  societies. 

The  purpose  of  incorporation  has  been  well  stated  by 
Chancellor  Kent  :  "  It  was  chiefly  for  the  purpose  of 
clothing  bodies  of  men  in  succession  with  the  qualities 
and  capacities  of  one  single,  artificial,  and  fictitious 
being  that  corporations  were  originally  invented,  and, 
for  the  same  convenient  purpose,  they  have  been 
brought  largely  into  use.  By  means  of  the  corpora- 
tion, many  individuals  are  capable  of  acting  in  perpet- 
ual succession  like  one  single  individual,  without  incur- 
ring any  personal  hazard  or  responsibility,  or  exposing 
any  other  property  than  what  belongs  to  the  corporation 
in  its  legal  capacity." — (2  Kent's  Coin.,  i^thEd., 268.) 


n8  LA  W  OF  THE  CHURCH. 

The  benefits  of  incorporation  are  so  manifest  as  to 
call  for  no  extended  consideration.  They  may  be 
stated,  in  part,  as  follows :  First,  convenience  in  the 
management  of  the  interests  of  the  Parish,  and  the 
carrying  on  of  its  work  ;  second,  the  protection  of  the 
property  of  individual  members  of  the  Parish  from  any 
liability  for  Parish  indebtedness  ;  third,  "  the  light  of 
the  Statute  Law  which  clearly  defines  and  regulates 
the  duty  of  the  corporate  body." 

With  but  few  exceptions,  the  different  States  have 
made  provision,  more  or  less  full,  in  their  Statute  Law 
for  the  incorporation  of  religious  societies.  It  is  un- 
necessary to  give  in  detail  the  Statute  Law  of  each 
separate  State  on  the  incorporation  of  Churches.  A 
statement  of  certain  general  principles  that  will  be 
found  to  prevail  in  most  of  the  States  will  be  sufficient. 

The  Statute  Law  of  several  of  the  States  requires,  as 
a  prerequisite  to  incorporation,  that  a  congregation 
desiring  to  become  incorporated  shall  first  have  be- 
come duly  organized  according  to  the  Constitution  and 
Canons,  or  usages,  of  the  Protestant  Episcopal  Church, 
in  that  Diocese  in  which  such  congregation  may  be 
situated,  while  other  States  require  no  previous  Eccles- 
iastical organization. 

Provision  for  the  Ecclesiastical  organization  of  a 
Parish  is  made  by  the  Constitution  and  Canons  of  the 
Church,  in  most  of  the  Dioceses. 

The  first  step  is  usually,  and  always  should  be,  to 
notify  the  Bishop,  or  if  there  be  no  Bishop,  then  the 
Standing  Committee,  or  its  President,  according  to 
the  law  of  the  Diocese,  setting  forth  such  facts  as  may 
be  required  by  the  Canons  of  the  Diocese. 

As  all  jurisdiction  rests  in  the  Bishop,  until  he  dele- 


INCORPORATION  OF  CHURCHES.  119 

gates  it  otherwise,  his  consent  is  necessary,  unless  dis- 
pensed with  by  Statute  or  Canon,  to  the  organiza- 
tion of  a  Parish.  His  consent,  and  (when  made  neces- 
sary), the  consent  of  the  Standing  Committee  being 
obtained,  the  Parish  may  proceed  to  complete  its 
Ecclesiastical  organization,  conformably  to  the  require- 
ments of  the  Constitution  and  Canons  of  the  Diocese. 
In  Maryland  the  consent  of  the  Convention  is  required. 

In  some  Dioceses  the  Parish  is  required  to  adopt 
Articles  of  Association  or  Agreement,  or  a  Constitu- 
tion, as  a  preliminary  step  to  its  recognition  by  the 
Ecclesiastical  authority  as  a  part  of  the  Church  in  the 
Diocese. 

The  mode  of  procedure  for  the  incorporation  of  a 
Church  is  far  from  uniform,  in  fact,  is  hardly  the  same 
in  any  two  States. 

In  most  of  the  States,  there  is  a  general  law  for  the 
incorporation  of  religious  societies  ;  special  provision 
being  sometimes  made  for  the  incorporation  of  Protes- 
tant Episcopal  Churches.  In  a  few  of  the  States  there 
is  a  special  act  for  the  incorporation  of  Protestant 
Episcopal  Churches,  as  in  Michigan  and  Maryland. 

In  other  States,  as  in  Connecticut,  the  law  simply  rec- 
ognizes the  Ecclesiastical  organization  and  gives  to  the 
Wardens  and  Vestrymen  the  legal  standing  of  Trus- 
tees, empowering  them  to  receive,  hold  and  dispose  of 
property  for  the  maintaining  of  religious  worship  ac- 
cording to  the  tenets  of  the  Church,  provided  they 
have  been  so  authorized  to  act  by  the  Parish. 

In  a  few  States  no  provision  is  made  for  the  incor- 
poration of  religious  societies,  and  resort  must  be 
had  to  the  Statute  made  for  the  incorporation  of  other 
societies  or  associations. 


i bo  LA  W  OF  THE  CHURCH. 

(For  forms  of  petition,  and  consent  of  Bishop  and 
Standing  Committee,  see  Appendix  A.) 

NOTICE. 

Whenever  a  congregation  or  any  number  of  persons 
desire  to  form  themselves  into  a  body  corporate,  public 
notice  of  such  intention  must  be  given  in  the  manner 
prescribed  by  the  Statute. 

In  some  States  a  written  notice  is  required.  In 
Delaware,  for  instance,  the  law  requires  the  "  publishing 
a  notice  for  ten  days  previous  to  the  time  of  such  meet- 
ing in  some  newspaper  published  in  the  city  or  town- 
ship in  which  such  church  is  located  :  and  if  no  news- 
paper is  published  therein,  then  such  notice  may  be 
given  by  posting  the  same  in  three  of  the  most  public 
places  in  such  city  or  township." 

In  New  Jersey  a  written  notice,  designating  the 
day  when,  and  the  place  where,  the  meeting  is  to  be 
held,  must  be  read  during  public  service  on  two  suc- 
cessive Sundays  preceding  the  day  of  meeting. 

In  New  York  the  law  requires  the  notice  to  be  made 
public  at  least  two  weeks  prior  to  the  meeting,  either 
by  the  "reading  of  such  notice  in  time  of  divine  service, 
at  the  usual  place  of  worship  of  such  parish  or  congre- 
gation, or  by  posting  the  same  conspicuously  on  the 
outer  door  of  such  place  of  worship." 

In  those  States  where  the  Statute  Law  prescribes 
the  requirements  of  the  notice,  such  requirements 
should  of  course  be  explicitly  complied  with ;  and  in 
States  where  the  requirements  are  not  set  forth  in  the 
Statute,  nor  the  manner  in  which  it  shall  be  given,  it 
will  probably  be  sufficient  if  the  notice  state  the  ob- 
ject, the  place,  and  the  time  of  meeting.     Notice  of 


INCORPORA  r/O.V  OF  CHURCHES.  121 

the  meeting  should  be  given  either  by  reading  it  in 
time  of  divine  service,  or  by  posting  it  on  or  near  the 
door  of  the  usual  place  of  worship,  or  if  there  be  no 
such  place  of  worship,  then  in  some  conspicuous  place 
near  to  the  proposed  place  of  meeting.  When  the 
Statute  Law  requires  the  notice  to  be  read  "  in  time 
of  divine  service,"  it  will  not  be  a  sufficient  compli- 
ance with  the  law  to  read  it  at  a  service  held  at  an  un- 
usual hour  on  Sunday. — {Dahlv.  Palache,  68  Cal.,  248.) 

The  hour  for  the  meeting  should  be  one  that  is  sea- 
sonable and  convenient  during  either  the  day  or  the 
early  evening. 

While  the  meeting  may  adjourn  to  another  hour  or 
day,  it  must  meet  at  or  near  the  hour  designated.  A 
meeting  held  a  few  minutes,  or  within  an  hour  after  the 
time  appointed,  would  probably  be  a  valid  meeting, 
but  no  meeting  would  be  legal  if  held  before  the  hour 
appointed. — {People  v.  The  Albany  and  Sus.  R.  R.  Co.  et 
al.,  55  Barb.,  344.) 

PLACE   OF   MEETING. 

The  place  of  meeting  should  be  at  or  near  the  usual 
place  of  worship  of  the  congregation  desiring  to  be- 
come incorporated  ;  but  if,  as  might  well  be  the  case 
in  some  of  the  States,  the  persons  so  desiring  had 
theretofore  held  no  public  religious  service,  any  con- 
venient place  in  the  town  where  they  or  a  majority 
of  them  resided  would  be  sufficient. 

THE    MEETING. 

First.  The  Quorum.  The  Statutes  of  most  of  the 
States  prescribe  the  number  of  persons  necessary  to 
be  present  in  order  to  constitute  a  quorum  for  the 
transaction  of  the  business  of  the  meeting.     Unless  the 


123  LAW  OF  THE  CHURCH. 

number  so  required  be  present,  no  valid  meeting  can 
be  held.  "  But  it  would  be  competent  for  a  less  num- 
ber to  adjourn  the  meeting  to  such  time  during  the  day 
or  evening  as  might  be  necessary  to  secure  a  sufficient 
attendance." — {Humphrey  s  "Law  of  the  Church"  p.  6.) 

Most  of  the  Dioceses  in  those  States  whose  laws  are 
silent  regarding  the  number  required  to  make  a  quorum 
for  the  incorporation  of  a  Church  or  Parish,  prescribe 
by  Canon  the  number  necessary  for  a  quorum  at  such 
meeting.  In  all  cases  where  the  Statute  Law  is  silent, 
the  Diocesan  Legislation  governs,  and  its  require- 
ments must  be  complied  with. 

Second.  The  Officers  of  the  Meeting.  A  quorum 
being  present,  the  first  step  toward  organization  is  the 
election  or  appointment  of  officers  of  the  meeting.  A 
President  or  Chairman,  and  a  Secretary  or  Clerk  are 
the  necessary  officers.  In  some  States  and  Dioceses, 
judges  of  election  must  also  be  appointed.  If  there  be 
a  Rector,  he  presides  virtute  officii.  In  most  of  the 
States  and  Dioceses  the  law  provides  that  if  there  be 
no  Rector,  then  one  of  the  Wardens  shall  preside  ;  and 
in  some  States  and  Dioceses  provision  is  made  that  in 
the  absence  of  a  Rector  and  Wardens,  a  Vestryman 
shall  be  chosen  to  preside.  This  of  course,  presup- 
poses an  Ecclesiastical  organization,  with  Rector, 
Wardens  and  Vestrymen,  already  existing,  but  where 
no  such  organization  previously  exists,  then  the  meet- 
ing must  first  proceed  to  choose  some  one  of  its  mem- 
bers to  preside.  After  the  meeting  is  called  to  order, 
a  Secretary  or  Clerk  should  be  chosen  or  appointed 
to  make  a  record  of  the  proceedings  of  the  meeting, 
unless  the  law  provides,  as  in  some  cases,  that  the 
Secretary  or  Clerk  of  the  Vestry  shall  so  act. 


INCORPORA  TION  OF  CHURCHES.  1*3 

THE   SCOPE   OF   THE    MEETING. 

This  will  depend  on  the  Statutes  of  the  State,  or  the 
Canons  of  the  Diocese,  or  both.  In  many  of  the 
States,  the  Statute  explicitly  sets  forth  what  shall  be 
done  at  the  meeting  ;  in  others,  the  Statute  simply 
provides  that  a  meeting  shall  be  held,  and  Articles  of 
Association  or  Agreement,  or  a  Charter  in  conformity 
with  the  requirements  of  the  Statute  or  the  Canons  of 
the  Diocese  be  signed,  or  signed  and  acknowledged  by 
the  members  of  the  meeting,  or  acknowledged  by  the 
officers  thereof,  and  filed  with  a  designated  officer.  In 
Massachusetts  and  a  few  other  States  no  Certificate, 
or  Charter,  or  Articles  of  Association  are  required  to  be 
filed  ;  the  Massachusetts  Statute,  after  giving  explicit 
directions  as  to  how  the  meeting  shall  be  warned,  and 
organized,  and  stating  that  any  ten  or  more  persons, 
male  or  female,  may  apply  to  a  Justice  of  the  Peace 
for  a  warrant  directing  that  a  meeting  be  called,  sim- 
ply declares  that  such  persons  upon  complying  with 
the  Statute  shall  become  a  corporation  under  any 
name  they  may  assume  at  the  meeting,  with  all  the 
rights,  privileges,  etc.,  relating  to  religious  societies. 
In  Arkansas  the  Statute  Law  merely  declares  that 
trustees  of  religious  societies  shall  have  certain  rights 
and  powers. 

It  would  be  a  work  of  unnecessary  labor  to  give  in 
detail  the  various  requirements  of  the  Statute  and 
Canon  Law  in  the  several  States  and  Dioceses  relative 
to  the  questions  to  be  decided  at  the  meeting.  The 
law  should  be  ciosely  followed  and  its  requirements 
strictly  complied  with. 

It  may  be  stated,  as  a  general  rule,  that  the  persons 


124  LAW  OF  THE  CHURCH. 

present  at  the  meeting,  in  the  absence  of  any  law  to 

the  contrary,  may  determine  : 

First.  Whether  they  shall  become  incorporated  or  not. 
If  this  question  be  decided  in  the  affirmative,  then, 

Second.  The  name  by  which  the  proposed  corpora- 
tion shall  be  known. 

Third.  The  date  on  which  the  annual  election  of 
Wardens  and  Vestrymen  shall  take  place. 

Fourth.  What  number  of  Vestrymen  shall  be  annually 
elected.  (The  minimum  and  maximum  number 
is  fixed  by  law  in  most  cases.) 

Fifth.  The  qualified  voters  present  should  then  elect 
two  Wardens  and  the  number  of  Vestrymen  be- 
fore agreed  upon,  to  serve  until  the  next  annual 
election,  or  until  their  successors  are  duly  elected. 
In  the  absence  of  any  law  requiring  decision  to  be 
made  by  ballot,  the  different  questions  may  be  de- 
cided by  a  viva  voce  vote. 

WHO   MAV   VOTE. 

The  qualifications  of  voters  are  prescribed  either  by 
the  Statute  Law  of  the  State  or  by  the  Canons  of  the 
Diocese.  In  some  States,  as  in  New  York,  the  Statute 
Law  prescribes  the  qualifications  of  voters;  in  others, 
as  in  New  Jersey,  the  law  simply  says  that  the  qualifi- 
cations of  voters  shall  be  conformable  to  the  Constitu- 
tion and  principles  of  the  Protestant  Episcopal  Church 
in  the  State;  and  in  still  other  States,  as  in  Kansas 
and  Arkansas,  the  Statute  Law  is  silent  on  the  ques- 
tion of  qualifications  of  voters.  Where  such  is  the  case, 
the  Church  may  and  should  prescribe  such  qualifica- 
tions. 

Only  such  persons  as  possess  the  qualifications  re- 


INCORPORA  TION  OF  CHURCHES.  125 

quired  by  the  law  of  the  State  or  of  the  Diocese  have 
a  right  to  vote,  and  it  is  the  duty  of  the  presiding 
officer,  or  such  other  officer  or  officers  as  may  be  desig- 
nated by  law  for  that  purpose,  to  reject  illegal  votes 
when  challenged.  The  Courts  have  decided,  however, 
that  the  reception  of  illegal  votes,  if  shown  to  be  insuf- 
ficient to  change  the  result,  will  not  necessarily  invali- 
date the  action  of  the  corporators. — {People  et  al.  v. 
Tut  hill  et  al.,  31  N.  Y.,  550.) 

As  this  question  of  qualifications  of  voters  will  be 
more  carefully  considered  under  this  same  head  in  the 
next  chapter  relating  to  annual  elections,  a  further 
consideration  thereof  at  this  point  is  unnecessary. 

CONDUCT    OF     ELECTION,   AND     QUALIFICATIONS    OF 
OFFICERS. 

First.  Conduct  of  Election.  The  election  must  be 
held  at  the  time  stated  in  the  notice,  unless  a  legal 
adjournment  is  had.  Any  material  deviation  from  the 
hour  named  therein  will  be  fatal  to  the  validity  of  the 
election. 

While,  in  the  absence  of  any  law  requiring  the  elec- 
tion to  be  by  ballot,  an  election  by  a  viva  voce  vote 
would  be  legal,  it  is  much  the  better  course  to  elect 
Wardens  and  Vestrymen  by  ballot,  that  course  having 
received  the  sanction  of  a  long  and  almost  universal 
custom. 

If  the  law  does  not  provide  otherwise,  the  Rector, 
who,  when  present,  presides  ex-officio,  should  appoint 
tellers  to  collect  and  count  the  votes.  In  New  York 
and  several  other  States  the  law  prescribes  that  the 
polls  shall  be  kept  open  for  one  hour,  or  longer  in  the 


126  LA  W  OF  THE  CHURCH. 

discretion  of  the  presiding  officer,  or  if  the  majority  of 
the  voters  present  so  desire. 

In  the  absence  of  any  such  provision  of  the  Statute 
or  Canon  Law,  the  voters  themselves  may  determine 
the  length  of  time  that  the  polls  shall  remain  open  ;  if 
no  time  is  so  determined  upon,  the  polls  should  be  kept 
open  a  reasonable  length  of  time,  sufficient  at  least  to 
give  to  all  qualified  voters  present  due  opportunity  to 
cast  their  ballots.  The  polls  being  closed  and  the 
tellers  having  counted  the  votes,  the  presiding  officer 
declares  the  result,  or  causes  it  to  be  declared  under 
his  direction. 

Second.  Qualifications  of  Wardens  and  Vestrymen. 
These  qualifications  are  in  nearly  every  case  prescribed 
by  the  Statute  or  Canon  Law,  and  will  be  more  par- 
ticularly noted  under  this  same  head  in  the  succeeding 
chapter.  The  requirement  is  almost  universal  that 
Wardens,  at  least,  should  be  communicants.  It  may 
also  be  stated  that,  in  the  absence  of  any  express  pro- 
vision of  law,  only  a  qualified  voter  is  eligible  to  the 
office  of  "Warden  or  Vestryman. 

CERTIFICATE. 

In  a  majority  of  the  States  the  law  requires  that  a 
Certificate  of  the  proceedings  of  the  meeting,  as  it  is 
called  in  New  Jersey,  or  Certificate  of  Incorporation, 
as  it  is  called  in  New  York,  be  filed  with  some  desig- 
nated civil  officer. 

The  New  York  Statute  may  be  cited  as  containing 
the  maximum  of  requirements.  It  directs  the  setting 
forth  of  the  following  facts: 

First.  The   fact   of  the   calling   and  holding  of  such 
meeting. 


INCORPORA  TION  OF  CHURCHES.  127 

Second.  The  name  of  the  corporation  as  decided  upon 

thereat. 
Third.  The  county,  and  the  town,  city  or  village,  in 
which  its  principal  place  of  worship  is,  or  is  in- 
tended to  be  located. 
Fourth.  The  day  of   the  week  commencing  with  the 
first  Sunday  in  Advent,  upon  which  the  annual 
elections  of  the  corporation  shall  be  held. 
Fifth.  The  number  of  Vestrymen  decided  upon  at  such 

meeting. 
Sixth.  The  names  of  the  Vestrymen   elected  at  such 

meeting  and  the  term  of  office  of  each. 
Seventh.  The  names  of  the  Church  Wardens  elected 
at  such  meeting  and  the  term  of  office  of  each. — 
{Laws  of  1909  [N.  K],  Ch.  51,  Art.  III.,  §  41.) 
This  Certificate  must  be  duly  executed  and  acknow- 
ledged by  the  presiding  officer,  and  also  by  two  persons 
present  and  voting  at  the   meeting,  and  filed  in  the 
office  of  the  Clerk  of  the  County  therein  specified. 

In  Minnesota  the  law  requires  the  name  of  the  Rec- 
tor, if  any,  and  the  date  of  the  organization  of  the  Par- 
ish to  be  stated. 

In  some  States,  as  in  Kansas,  the  law  directs  a  Char- 
ter duly  signed  and  acknowledged  by  five  or  more 
persons,  to  be  filed  in  the  office  of  the  Secretary  of 
State,  setting  forth  the  facts  by  law  required.  In 
Michigan  and  a  few  other  States  Articles  of  Agreement 
must  be  properly  executed  and  acknowledged,  and 
then  recorded  in  the  office  of  the  Clerk  of  the  County 
in  which  the  Church  is  located.  In  some  States,  as  in 
Massachusetts,  Connecticut,  and  Arkansas,  no  Certifi- 
cate is  required  to  be  filed. 

In  Florida  a  proposed  Charter,  setting  forth  certain 


128  LA  W  OF  THE  CHURCH. 

facts,  must  be  presented  to  the  Judge  of  the  Circuit 
Court  of  the  County  in  which  the  organization  is  sit- 
uated, subscribed  by  the  intended  corporators  and 
properly  acknowledged. 

In  Georgia  the  law  directs  that  in  case  one  or  more 
proper  persons  present  a  petition  to  the  Superior  Court, 
showing  that  a  Church  has  been  or  is  about  to  be 
established  in  the  County  where  the  Court  is  then  sit- 
ting and  praying  for  certain  corporate  powers,  the 
Court  may  grant  such  corporate  powers  for  a  term  of 
twenty  years,  unless  sooner  revoked  by  law.  Power 
is  also  given  to  the  Court  to  amend  the  Charter. 

In  California  the  Charter  must  state  the  number  of 
years,  not  exceeding  fifty,  for  which  it  is  to  exist. 

In  Illinois  the  law  directs  the  chairman  of  the 
meeting  to  make  an  affidavit  of  the  proceedings  of  the 
meeting,  and  file  the  same  in  the  office  of  the  Recorder 
of  Deeds. 

In  the  State  of  Pennsylvania  a  Charter  setting  forth 
certain  facts,  as  prescribed  by  law,  and  duly  acknow- 
ledged by  at  least  three  of  the  subscribers  thereto,  with 
proof  of  the  publication  of  the  notice,  as  required  by 
law,  must  be  presented  to  the  Judge  of  the  proper 
County  for  his  approval,  and  when  so  approved,  it  must 
then  be  recorded  in  the  office  for  the  recording  of 
deeds  in  the  said  County. 

In  those  States  where  the  law  requires  the  filing  of 
a  Certificate,  Charter,  or  Articles  of  Association  or 
Agreement,  it  designates  the  proper  officer  with  whom 
such  Certificate,  Charter,  or  Articles  shall  be  filed. 

The  Certificate  or  Charter  should  be  carefully  drawn, 
containing  a  concise  but  complete  recital  of  the  pro- 
ceedings  of  the  meeting,  together  with  the  fact  that 


INCORPORA  TJON  OF  CHURCHES.  129 

the  required  notice  was  duly  given,  and  that  all  the 
requirements  of  the  law  have  been  complied  with. 

It  need  hardly  be  added  that  even  where  the  law 
does  not  require  a  Certificate  to  be  made,  the  Clerk  or 
Secretary  of  the  meeting  should  make  a  complete  rec- 
ord of  the  proceedings  of  the  meeting  and  tran- 
scribe them  in  the  record  book  of  the  Parish,  which 
record,  when  so  transcribed,  should  be  signed  by  both 
the  presiding  officer  and  the  Secretary  of  the  meeting. 

TERMS    OF   OFFICERS    ELECTED. 

The  terms  of  office  of  the  Wardens  and  Vestrymen 
elected  at  this  meeting  continue  until  the  first  annual 
election  on  the  day  designated  in  the  Certificate  or 
Charter. 

Provision  is  made,  in  a  majority  of  the  Dioceses,  for 
the  continuation  in  office  of  the  Wardens  and  Vestry- 
men until  their  successors  are  elected.  And  even  where 
no  such  provision  is  made,  in  case  of  failure  to  elect 
such  officers  at  an  annual  election,  the  Wardens  and 
Vestrymen  previously  elected  would  still  continue  in 
office  and  so  remain  until  their  successors  were  legally 
elected.  "  It  is  a  well-settled  principle  that  an  annual 
officer  continues  until  superseded  by  the  appointment 
of  another  in  his  place." — {McCall  v.  The  Byram  Mfg. 
Co.,  6  Conn.,  428.  See  also  9  Conn.,  536;  6  Johnson 
Rep.,  158;   ^Johnson  Ch.  Rep.,  366.) 

WHEN   INCORPORATION   COMPLETE. 

Until  the  Certificate,  Charter,  or  Articles  of  Associa- 
tion or  Agreement  have  been  duly  filed,  unless  no  such 
filing  is  required  by  law,  the  Church  can  exercise  none 
of  the  rights  or  privileges  of  a  corporate  body.     The 


i3o  LA  W  OF  THE  CHURCH. 

incorporation  of  the  Church  is  not  complete  until  the 
Certificate,  Charter,  or  Articles  are  duly  filed  with  the 
officer  designated  by  law  for  that  purpose.  It  is 
upon  the  due  filing  of  such  Certificate,  etc.,  with  the 
proper  officer,  when  the  law  so  requires,  that  the  Rec- 
tor (if  there  be  one),  Wardens  and  Vestrymen  become 
a  body  corporate,  by  the  name  expressed  in  such  Cer- 
tificate, Charter,  or  Articles  of  Association  or  Agree- 
ment. 


CHAPTER  II. 

OF  ANNUAL  PARISH    MEETINGS. 

PROVISION  is  made  by  Statute  or  Canon  in 
every  State  or  Diocese  for  an  annual  meeting  of 
the  qualified  voters  of  an  incorporated  Parish. 
The  date  and  the  hour  of  this  meeting  are  fixed  by 
the  Statute  Law,  or  by  the  Charter,  or  other  Article 
of  Incorporation,  or  by  the  Canons  of  the  Diocese,  or 
by  the  Parish  itself,  and  the  meeting  must  be  held  on 
the  day  and  at  the  hour  so  determined  upon. 

A  meeting  held  upon  a  different  day  from  the  one 
fixed  by  law,  or  duly  determined  upon  beforehand, 
would  be  illegal,  and  its  proceedings  null  and  void. — 
{First  Church,  etc.,  v.  Hillery  51,  Cal.  155.) 

NOTICE. 

Due  notice  of  the  annual  meeting  must  be  given, 
according  to  the  requirements  of  the  Statute  Law  and 
the  Canons  of  the  Diocese.  In  the  Diocese  of  Texas 
no  notice  seems  to  be  required,  unless  the  annual 
meeting  is  on  some  other  day  than  Easter  Monday. 
The  notice  should  state  the  day  and  hour  when,  the 
place  where,  the  meeting  is  to  be  held,  and  the  purpose 
of  the  meeting. 

Every  subject  that  is  intended  to  be  acted  upon  at 
the  meeting  should  be  clearly  specified  in  the  notice. 
The  Diocese  of  Connecticut  is  an  exception  to  this 
general  rule;  the  Canon  only  requiring  that  "the 
warnings   of  all  Parish    meetings,   except  the  annual 


1 32  LA  W  OF  THE  CHURCH. 

meeting,  shall  contain  a  statement  of  the  objects  for 
which  the  meeting  is  called." 

The  manner  of  giving  the  required  notice  varies  in 
the  several  Dioceses.  Some  require  that  it  shall  be 
read  by  the  Rector,  or  officiating  Minister,  or,  if  there 
be  no  Rector  or  officiating  Minister,  by  a  Warden,  on 
the  two  Sundays  immediately  preceding  such  meeting, 
in  time  of  divine  service  ;  in  a  few  Dioceses  it  is  made 
sufficient  if  the  notice  be  so  read  on  the  Sunday  prior 
to  the  meeting.  In  some,  it  is  required  that  the  notice 
be  so  read,  or  conspicuously  posted  on  the  outer  door 
of  the  Church,  or  usual  place  of  worship,  a  certain 
length  of  time,  usually  ten  days  or  two  weeks,  before 
the  meeting  ;  others  require  the  notice  to  be  both  so 
read  and  so  posted,  while  still  others  simply  require 
that  due  notice  be  given. 

The  object  of  the  notice  is  that  the  legal  voters  of 
the  Parish  may  be  fully  apprised  of  the  meeting,  and 
what  business  is  purposed  thereat,  in  order  that  they 
may  attend  and  exercise  their  rights.  If  the  Statute  or 
Canon  Law  gives  the  requirements  of  the  notice,  those 
requirements  should  be  carefully  complied  with.  (For 
forms  of  notice,  see  Appendix  B.) 

PURPOSE   OF   MEETING. 

The  chief  purpose  of  the  meeting  is  usually  the  elec- 
tion of  Wardens  and  Vestrymen,  to  succeed  those 
whose  terms  of  office  then  expire,  and  election  of 
delegates  to  the  Diocesan  Convention,  unless  the  law 
provides  that  such  delegates  shall  be  elected  by  the 
Vestry.  In  some  Dioceses,  as  in  the  Diocese  of  Chi- 
cago, a  statement  of  the  financial  condition  of  the  Parish 
is  required  to  be  read  at  every  annual  meeting  thereof. 


ANNUAL  PARISH  MEETINGS.  133 

Questions  concerning  the  alienation  or  encumbrance 
of  real  Church  property,  change  of  the  name  or  title  of 
the  corporation,  change  in  the  number  of  Vestrymen, 
change  in  the  date  of  the  annual  meeting,  or  any  other 
question  concerning  which  the  law  requires  the  con- 
sent of  the  Parish,  and  only  in  case  the  law  does  so 
require,  may  be  considered  at  such  annual  meeting, 
provided  the  notice  thereof  gives  due  warning  that 
such  question  or  questions  will  be  presented  to  the 
voters  of  the  Parish  at  said  meeting  for  their  consider- 
ation and  approval.  But  a  Parish  meeting  has  no 
voice  in  or  control  over  those  questions  which  the 
law  leaves  to  the  final  determination  of  a  legally  con- 
stituted Vestry. 

It  may  be  stated  as  a  general  rule,  that  in  most 
cases  the  legal  action  of  an  annual  Parish  meeting  will 
be  confined  to  the  election  of  two  Wardens  and  the 
legal  number  of  Vestrymen,  or,  in  some  Dioceses,  the 
election  of  Vestrymen  alone,  and,  where  so  provided, 
of  delegates  to  the  Diocesan  Convention.  In  a  few 
Dioceses,  as,  for  instance,  those  in  the  State  of  New 
York,  the  law  directs  that  only  one  Warden  and  one- 
third  of  the  whole  number  of  Vestrymen  shall  be 
elected  each  year. 

In  some  States  the  law  provides  that  the  Vestry  shall 
elect  the  Wardens  from  among  their  own  number  ;  in 
others  the  Rector  has  the  right  to  appoint  one  War- 
den, and  the  Parish  or  Vestry,  as  the  law  may  pro- 
vide, elects  the  other  Warden. 

The  meeting  must  be  held  at  the  place  designated  in 
the  notice,  and  this  in  most  of  the  Dioceses  must  be 
the  Church  or  usual  place  of  worship  of  the  Parish. 
The  consensus  of  opinion  seems  to  be,  that  a  meeting 


134  LA  W  OF  THE  CHURCH. 

held  in  a  Parish  House  connected  with  or  closely  ad- 
joining the  Church  edifice,  would  probably  be  a  suffi- 
cient compliance  with  the  law,  provided  such  Parish 
House  was  designated  in  the  notice  as  the  place  of 
meeting. 

QUORUM. 

In  the  absence  of  any  Law  or  Canon  designating 
the  number  of  legal  voters  necessary  to  be  present  at 
any  annual  meeting  of  a  Parish  in  order  to  constitute 
a  quorum,  those  who  may  be  present  at  such  meeting 
constitute  a  quorum  for  the  transaction  of  its  busi- 
ness. The  rule  is  well  stated  in  Madison  Avenue  Bap- 
tist Church  v.  Baptist  Church,  etc.  (32  How.  Pr.  \_N.  K], 
335)  '  "  Where  the  corporators  are  indefinite,  .  .  . 
then  such  of  them  as  assemble  pursuant  to  regular  call 
will  constitute  a  quorum  for  the  transaction  of  busi- 
ness, and  a  majority  of  said  quorum  can  pass  a  resolu- 
tion." A  few  of  the  Dioceses  make  provision  for  a 
quorum  at  the  annual  Parish  meeting. 

The  Canons  of  the  Diocese  of  Chicago  provide  that 
three  legal  voters  shall  constitute  a  quorum  at  all 
duly  called  Parish  meetings  ;  while  those  of  Ohio  pro- 
vide that  if  less  than  eighteen  qualified  voters  be 
present  at  a  Parish  meeting,  and  the  Rector  and  one 
Warden,  or  the  presiding  officer  and  one-sixth  of  those 
present,  concur  in  believing  that  the  best  interests  of 
ihe  Parish  demand  the  postponement  of  the  election, 
then  the  presiding  officer  may  declare  an  adjournment 
of  the  meeting,  and  a  postponement  of  the  election  to 
some  designated  day  and  hour  not  less  than  seven  nor 
more  than  fourteen  days  after  Easter  Monday,  and  that 
public  notice  be  given  of  the  said  adjourned  meeting. 


ANNUAL  PARISH  MEETINGS.  135 

PRESIDING   OFFICER   OF   MEETING. 

The  Rector,  when  present,  presides  ex-officio  at  all 
meetings  of  the  Parish.  It  is  a  right  inherent  in  his 
office,  and  of  which  he  can  be  deprived  only  by  ex- 
press legislation,  civil  or  canonical.  The  corporation 
cannot  take  away  this  right  of  the  Rector  to  preside  at 
its  meetings. 

This  right  of  the  Rector  to  preside  at  all  meetings 
of  the  Parish  has  been  questioned  in  the  State  of 
Delaware. 

In  the  case  of  State  ex  rel.  Danlap  v.  Stewart  ct 
al.  (6  Houst.  Rep.,  359),  the  Court,  in  its  instructions  to 
the  jury  in  the  trial  of  the  case  intimated  that,  while 
the  Rector  of  a  Church  was  ex-officio  chairman  at  all 
Vestry  meetings  when  present,  he  was  not  neces- 
sarily, under  the  Constitution  and  Canons  of  Dela- 
ware, which  were  silent  on  the  subject,  chairman  at 
the  annual  meetings  of  the  parishioners  held  for  the 
election  of  Wardens  and  Vestrymen,  as  such  elec- 
tions were  merely  temporal  matters,  and  under  the 
complete  control  of  the  parishioners  themselves. 

It  appears  from  the  statement  of  the  case  that  a 
dissension  having  arisen  between  the  Vestry  of  a  Par- 
ish and  its  Rector,  a  Rev.  Mr.  Stewart,  an  application 
had  been  made  by  the  Parish  to  the  Bishop  of  the  Dio- 
cese, asking  him  to  terminate  the  relation  between  the 
Parish  and  its  Rector  ;  that  the  Bishop,  after  consulta- 
tion with  the  Standing  Committee  of  the  Diocese,  and 
with  their  concurrence  as  provided  by  the  Canons  of 
the  Diocese,  duly  notified  the  said  Stewart  that  his 
relations  to  the  Church  as  its  Rector  would  cease  at 
midnight    on   the   following    Easter    Day    (April    17, 


136  LA  IV  OF  THE  CHURCH. 

1881).  The  election  in  question  was  held  on  the  fol- 
lowing Monday  (April  18). 

The  meeting  was  called  to  order  by  the  Secretary 
of  the  Vestry,  and  a  chairman  elected  ;  but  the  former 
Rector  prevented  the  chairman  from  taking  his  seat, 
and  abruptly  took  the  chair  himself,  and  called  on  the 
voters  "to  come  up  and  vote  quick."'  In  the  confu- 
sion that  followed,  no  record  was  made  of  the  voters, 
nor  any  motion  made  or  carried  that  the  former  Rec- 
tor should  act  as  chairman  of  the  meeting.  Two  sets 
of  Wardens  and  Vestrymen  were  elected,  one  set  by 
the  adherents  of  the  former  Rector,  and  the  other  by 
his  opponents  ;  and  the  question  that  came  before  the 
Court  was  as  to  which  set  were  entitled  to  the  offices 
of  Wardens  and  Vestrymen  of  the  Parish.  The  rec- 
torship of  Stewart  having  terminated  by  the  lawful 
authority  of  the  Bishop  at  midnight  of  the  day  before, 
he  was  therefore  not  the  Rector  of  the  Parish  at  the 
time  of  the  meeting,  and  had  no  right  to  preside 
thereat.  The  question  whether  a  Rector  had  the 
right,  virtute  officii,  to  preside  at  a  Parish  meeting  was 
not  therefore  before  the  Court,  and  its  opinion  regard- 
ing the  right  of  a  Rector  to  so  preside  was  simply  an 
obiter  dictum,  and  unnecessary  to  the  determination  of 
the  case  at  issue. 

The  point  was  not  argued  before  the  Court,  and  no 
authorities  presented  to  sustain  the  right  of  a  Rector 
to  preside  at  a  meeting  of  the  Parish. 

The  mere  obiter  dictum  of  a  Judge  on  a  question  not 
before  him,  nor  argued  by  counsel,  and  in  all  proba- 
bility made  without  any  examination  of  the  authorities 
on  the  question,  can  hardly  be  considered  as  sufficient 
to  change  the  well-settled    rule  of  law  on  the  subject, 


ANNUAL  PARISH  MEETINGS.  137 

nor  to  reverse  the  uniform  decisions  of  the  Courts  es- 
tablishing the  Rector's  right  to  preside  at  all  meetings 
of  the  Parish. 

In  Queen  v.  D'Oyly  (4  Perry  &  Davidsons  Rep.,  52), 
it  was  decided,  "  The  Rector  has  a  common  law  right 
and  authority  to  preside  at  such  election  [election  of 
Church  Wardens],  as  being  the  functionary  who  is  at 
the  head  of  the  Parish  for  Ecclesiastical  purposes." 

In  Wilson  v.  M'Math  (3  Phill.  Rep.,  67),  it  was  de- 
cided, "  In  these  meetings  then  of  the  Parish,  consist- 
ing of  '  Minister,  Church  Wardens  and  parishioners,' 
assembled  in  the  Church  for  an  Ecclesiastical  purpose, 
that  the  Rector  parochice  should  not  preside,  but  be 
considered  as  a  mere  individual,  would  be  most 
strangely  incongruous.  On  sound  legal  principles  he 
is  the  head  and  presses  of  the  meeting." 

Sir  Robert  Phillimore,  in  his  learned  work  on  Ec- 
clesiastical Law  {id  Ed  i  p.  1497),  says:  "The  right 
of  the  Minister  (be  he  Rector,  Vicar,  or  perpetual  Cur- 
ate) to  preside  at  a  meeting  of  his  parishioners  seems 
to  have  been  unquestioned  law  since  the  learned  de- 
cision of  Sir  J.  Nicholl  in  Wilson  v.  M'Math" — (See 
also  Baker  v.  Wood,  I  Curteis,  507;  Blunfs  "  Book  of 
Church  Lazv,"  p.  300.) 

This  right  of  the  Rector  to  preside  at  all  meetings 
of  the  Parish  is  recognized  in  the  Statutes  of  some  of 
the  States,  and  in  the  Canons  of  most  of  the  Dioceses, 
and  will  not,  I  think,  be  seriously  questioned  even  in 
those  Dioceses  where  that  right  is  not  distinctly  af- 
firmed by  the  Statute,  or  Canon  Law. 

The  Canon  or  Statute  Law  in  nearly  all  the  Dio- 
ceses provides  that  in  case  there  be  no  Rector,  or  if  he 
be  absent,  then  one  of  the  Wardens  shall  preside.     In 


138  LA  W  OF  THE  CHURCH. 

case  both  Wardens  be  present,  and  the  law  does  not 
designate  which  one  shall  preside,  the  one  called  to 
the  chair  by  a  majority  of  the  voices  shall  be  the  pre- 
siding officer  of  the  meeting.  In  case  no  Warden  be 
present,  a  Vestryman,  or,  in  some  Dioceses,  a  parish- 
ioner (presumably  a  legal  voter),  chosen  by  the  meet- 
ing, shall  preside.  In  some  Dioceses  the  law  directs 
that  judges  of  the  election  shall  be  appointed.  In 
Texas  the  congregation  may  name  its  own  election 
managers,  unless  otherwise  provided  by  parochial  le- 
gislation. In  the  Diocese  of  Pittsburgh  the  form  of 
by-laws  recommended  by  the  Diocesan  Convention  for 
adoption  by  the  several  Parishes  provides  that  the 
Rector,  with  the  Wardens,  shall  constitute  the  judges 
of  election.  In  Montana,  the  presiding  officer  and 
two  tellers,  appointed  at  the  meeting,  act  as  judges 
of  election,  whose  duty  it  is  to  decide  all  questions  as 
to  the  qualification  of  voters.  In  Virginia,  the  Canons 
provide  that  the  Vestry  shall  appoint  three  persons,  of 
whom  not  more  than  two  members  shall  be  of  their 
own  body,  to  act  as  judges  in  conducting  and  superin- 
tending the  annual  elections.  But  in  those  Dioceses 
where  the  law  makes  no  provision  for  the  election  or 
appointment  of  judges  of  election,  the  presiding  officer 
has  the  right  to  appoint  tellers  to  collect  and  count 
the  votes  ;  he  also  has  a  general  supervision  of  the 
election,  and,  in  the  absence  of  any  law  to  the  contrary, 
decides  all  questions  as  to  qualifications  of  voters  ;  it 
is  also  his  right  to  reject  illegal  votes  when  challenged. 
It  has  been  decided  that  the  presiding  officer  cannot 
on  his  own  motion  reject  a  vote.  When  a  vote  is  of- 
fered, it  must  be  received,  unless  challenged  ;  the  vote 
having  been  received,  the  question  is  decided,  and  the 


ANNUAL  PARISH  MEETINGS.  139 

tellers  cannot  disregard  the  vote  on  the  ground  that  it 
was  illegal. — (Hartt  v.  Harvey,  32  Barb  ,  55;  People 
v.  White,  n  Abb  tt,  Pr.  Rep.  [N.  K],  168.) 

Unless  otherwise  provided,  the  presiding  officer  is 
also  the  returning  officer,  and  enters  the  proceedings 
of  the  meeting,  or  causes  it  to  be  entered,  in  the  rec- 
ord book  of  the  Vestry. 

The  proceedings  of  the  annual  meeting,  and  of 
every  special  meeting  of  the  Parish,  should  be  entered 
on  the  records  of  the  Vestry  or  in  some  other  book 
provided  for  the  purpose,  even  when  not  so  required 
by  law,  in  order  that  a  record  thereof  may  be  pre- 
served for  future  reference. 

QUALIFICATIONS   OF   VOTERS. 

The  qualifications  of  voters  at  the  annual  Parish 
meetings  are,  with  few  exceptions,  regulated  by  the 
Canons  of  the  several  Dioceses,  and  are  so  diverse  as 
to  render  it  impossible  to  give  any  general  rule  gov- 
erning the  question.  Reference  must  always  be  had 
to  the  Canons  of  the  Diocese,  and  in  a  few  Dioceses  to 
the  Statute  Law;  in  a  few  others  the  matter  is  left,  in 
part,  to  the  determination  of  the  Parish  itself. 

In  the  five  Dioceses  in  the  State  of  New  York,  the 
qualifications  of  voters  are  defined  by  the  Statute  Law. 
In  the  State  of  Maryland,  the  "  Vestry  Act  "  also  de- 
fines the  qualifications  of  those  who  may  vote  for  Ves- 
trymen. It  would  be  a  work  of  unnecessary  labor, 
without  any  corresponding  advantage,  to  state  in  de- 
tail the  various  requirements  of  the  several  Dioceses 
necessary  to  constitute  a  legal  voter  in  the  Parishes 
therein   situated.     A   consideration  of  certain  of  the 


i4o  LA  W  OF  THE  CHURCH. 

qualifications  required  in  a  majority  of  the  Dioceses 
will  be  all  that  is  necessary.  In  most  of  the  Dioceses 
it  is  required  that  voters  shall  be  baptized  males  of  full 
age.  A  few  Dioceses  do  not  require  that  a  person 
shall  have  been  baptized,  only  that  he  shall  be  a  male 
person  of  full  age,  while  others  require  that  the  voter 
shall  not  only  have  been  baptized,  but  that  he  shall 
also  be  a  communicant. 

In  the  Diocese  of  Lexington  persons  over  the  age 
of  eighteen  years,  possessing  certain  other  qualifica- 
tions, are  legal  voters  under  its  Canons.  In  some 
Dioceses,  as  in  Maine,  Indiana,  and  many  of  the  West- 
ern Dioceses,  the  franchise  is  granted  to  females  as 
well  as  to  males,  and  in  some  cases  the  required  age 
for  females  is  fixed  at  eighteen. 

It  is  also  required  in  the  majority  of  the  Dioceses, 
that  in  order  to  become  qualified  to  vote  at  a  Parish 
meeting,  a  person  must  have  been  a  regular  or  habit- 
ual attendant  upon  the  public  worship  of  the  Church 
in  that  Parish  for  a  certain  period  of  time,  and  a  regu- 
lar contributor  to  the  support  of  that  Church,  also  for 
a  definite  period  of  time. 

In  disputed  elections,  there  is  usually  more  contro- 
versy over  these  two  requirements  for  a  qualified  voter 
than  any  others,  and  they  are,  therefore,  deserving  of 
more  careful  consideration. 

What  constitutes  a  regular  or  habitual  attendant  at 
the  public  worship  or  services  of  the  Church  ? 

The  standard  dictionaries  define  the  word  "regular" 
as  "  steady  or  uniform  in  course,  practice,  or  occur- 
rence; not  subject  to  unexplained  or  irrational  varia- 
tion; returning  at  stated  intervals;  orderly;  methodi- 
cal; periodical." 


ANNUAL  PARISH  MEETINGS.  141 

"Habitual"  is  defined  as  "  according  to  or  consti- 
tuting a  habit;  customary;  usual;  regular." 

Hence,  habitual  or  regular  attendance  obviously 
means  something  more  than  an  occasional  or  irregular 
attendance.  The  very  term  habitual  or  regular  is  used 
in  the  Statute  or  Canon  expressly  to  characterize  the 
nature  of  the  attendance  necessary  to  render  a  person 
possessing  other  required  qualifications  a  qualified 
voter.  An  habitual  or  regular  attendant  upon  the 
services  of  a  Church  is  one  who  attends  such  services 
habitually,  regularly,  whose  custom  it  is  to  be  present 
at  the  said  services;  one  who  is  more  often  present 
than  absent. 

It  is  certain  that  one  who  seldom  attends  the  pub- 
lic worship  of  the  Church,  or  who  is  irregular  in  such 
attendance,  or  who  is  more  often  absent  than  present 
at  the  public  services  of  the  Church,  or  at  least  at 
some  one  of  such  services,  if  there  be  more  than  one 
on  a  Sunday,  cannot  be  called  either  an  habitual  or 
regular  attendant  upon  the  public  worship  of  the 
Church,  does  not  meet  the  plain  and  obvious  require- 
ments of  the  Statute  or  Canon,  and  is  not  a  qualified 
voter. 

The  question  was  thoroughly  examined  and  the  rule 
well  laid  down  by  the  Court  in  People  et  al.  v.  Tuthill 
et  al.  (31  N.  Y.,  550).  After  discussing  the  question  of 
what  is  meant  by  a  stated  attendant,  the  Court  says: 
"  The  distinction  between  an  attendant  of  that  char- 
acter, and  one  whose  attendance  is  irregular  and  at  un- 
certain periods,  or  occasional  only,  is  plain  and  well  un- 
derstood. Indeed,  it  is  too  plain  and  obvious  to  be  aided 
much  by  attempts  at  exact  description  or  definition. 
Regular  attendance  at  the  stated  times  for  worship,  as 


i42  LA  W  OF  THE  CHURCH. 

established  in  the  Church,  society,  or  congregation,  as 
distinguishable  from  irregular  or  occasional  attendance, 
is  what  is  necessary.  This  attendance  must  be  per- 
sonal and  cannot  be  supplied  by  another.  The  regu- 
lar attendance  of  the  wife,  or  other  member  of  the  fam- 
ily, will  not  answer.  And  no  amount  of  contribution  to 
the  support  of  the  Church  or  society  can  be  accepted 
in  lieu  of  this  personal  presence  statedly." 

The  Court  also  said:  "  It  is  unnecessary  to  deter- 
mine in  this  case  how  often  a  person  must  attend  at 
the  stated  periods  for  worship  in  the  course  of  the 
year  to  be  a  stated  attendant.  It  is  enough  to  say 
that  persons  who  attend  a  {e\v  times  only  in  the  course 
of  the  year,  as  compared  with  the  number  of  stated 
times  for  worship  within  such  year,  and  at  irregular 
and  uncertain  intervals,  are  clearly  not  stated  attend- 
ants." 

This  rule  would  not  necessarily  apply  to  those  who 
were  prevented,  by  a  long-continued  sickness  or  an  ex- 
tended absence  from  the  Parish,  from  attending  the 
services  of  the  Church.  The  rule  applicable  in  civil 
elections  would  apply  here,  and  depend  on  the  inten- 
tion of  the  person.  If  it  was  his  intention  to  resume 
attendance  on  the  services  of  the  Church  when  recov- 
ered from  his  sickness,  or  on  his  return  from  his  jour- 
ney, his  rights  as  a  voter  would  doubtless  remain  un- 
impaired; but  if  there  was  no  such  intention,  then  his 
rights  as  a  voter  would  be  lost.  Humphrey  so  states 
it  as  his  opinion  in  his  "Lata  of  the  Church"  {p.  14). 

The  observations  made  concerning  regular  attend- 
ants will  also  apply  to  regular  contributors.  To  be  a 
regular  contributor  one  must  contribute,  not  occasion- 
ally nor  at  irregular  interv  As,  but  regularly,  habitually, 


ANNUAL  PARISH  MEETINGS.  143 

and  at  stated  intervals,  and  the  contributions  must  be 
made  in  such  a  manner  that  their  regularity  may  be 
determined  upon  by  the  proper  officers  of  the  Church. 
The  depositing  of  money  in  the  offertory  basins  on 
such  Sundays  as  the  person  happened  to  be  in  Church 
would  not  probably  be  a  sufficient  compliance  with  the 
law  requiring  a  regular  contribution,  unless  the  money 
thus  contributed  was  so  deposited  that  the  amount 
and  the  name  of  the  contributor  could  be  afterwards 
determined.  It  is  not  sufficient  that  the  contribution 
be  promised  or  subscribed,  it  must  be  paid.  A  prom- 
ise to  contribute  is  clearly  not  a  contribution  until  it 
is  paid.  If  one  should  rent  a  pew  or  sitting  in  a 
Church,  or  subscribe  a  certain  sum  per  week  or  month, 
he  must  have  paid  the  amount  of  that  pew  rent  or 
subscription  then  due  and  payable  before  the  meeting, 
in  order  to  be  qualified  to  vote  as  a  regular  contribu- 
tor. The  Canons  of  the  Diocese  of  Newark  thus  de- 
fine one  who  is  not  a  regular  contributor:  "  No  one 
shall  be  deemed  a  regular  contributor  .  .  .  who  is  in 
arrears  in  the  payment  of  any  portion  of  his  contribu- 
tion that  may  be  due  and  payable  on  or  before  the  first 
day  of  that  month  in  which  said  meeting  is  held." 

In  the  case  oi  People, etc.,  v.  Tuthill,  etc.,  above  cited, 
the  Court,  in  deciding  in  what  manner  a  person  must 
contribute  to  the  support  of  a  Church  in  crder  to 
render  him  a  qualified  voter,  thus  states :  "  He  must 
contribute  to  its  support  according  to  the  usages  and 
customs  thereof.  This  undoubtedly  means  substantial 
and  vital  aid  and  support.  Personal  attendance  and 
countenance  might  in  one  sense  contribute  to  the  sup- 
port of  such  an  organization.  But  that  is  not  the  con^ 
tribution    intended    by  this   provision  of  the  Statute. 


i44  LA  W  OF  THE  CHURCH. 

The  Statute  means  the  necessary  material  support, 
without  which  the  organization  cannot  exercise  its  or- 
dinary functions  and  perform  its  customary  and  appro- 
priate duties  and  ministrations.  It  means  the  parting 
with,  and  contribution  of,  a  portion  of  one's  worldly  sub- 
stance in  the  usual  and  customary  way,  to  be  used  in 
meeting  and  defraying  the  expanses  incurred  by  the 
Church,  congregation,  or  society  in  the  support  of  pub- 
lic and  divine  worship.  Merely  attending  as  a  wor- 
shipper, or  taking  a  leading  or  a  subordinate  part  in 
the  exercises,  or  rendering  some  special  gratuitous 
service,  will  not  answer  this  requirement  of  the 
Statute.  .  .  .  In  this  view  contributions  made,  not 
for  the  support  and  maintenance  of  the  religious  incor- 
poration, but  for  the  support  or  promotion  of  some 
other  object  or  enterprise  in  which  the  Church,  con- 
gregation, or  society  may  be  engaged,  however  valu- 
able or  praiseworthy,  as  Sunday-schools,  missions  and 
the  like,  will  not  be  sufficient."  The  Court  also  held 
that  one  who  acts  as  leader  of  a  choir,  or  as  sexton  of 
the  Church,  without  compensation,  even  though  such 
service  had  been  compensated  for  before,  was  not  a 
legal  voter,  not  having  contributed  to  the  support  of 
the  Church  for  the  previous  year  according  to  any 
usage  or  custom  thereof. 

The  contribution  must  also  have  been  made  for  the 
full  length  of  time  required  by  the  law.  If,  for  in- 
stance, it  is  required  that  one  must  be  a  regular  con- 
tributor for  one  year  previous  to  the  election,  the  fact 
that  one  had  been  a  regular  contributor  for  eleven 
months  would  not  be  sufficient  to  meet  the  require- 
ments of  the  law. 

It   is  manifestly  the   plain   intention   of  the  law  in 


ANNUAL  PARISH  MEETINGS.  145 

prescribing  certain  qualifications  for  those  who  shall  be 
allowed  to  choose  the  officers  of  the  Church,  to  secure 
the  government  and  control  of  the  Church's  temporal- 
ities to  such  of  its  adherents  and  supporters  as  shall 
manifest  their  attachment  thereto,  and  interest  in  its 
material  welfare,  by  their  habitual  attendance  at  its 
public  services,  and  their  habitual  contributions  to 
its  support.  For,  as  the  Court  remarked  in  the  case 
above  cited,  it  is  plain  that  upon  no  other  principle  or 
policy  could  the  Church,  depending  as  it  does  upon 
mere  voluntary  contributions  for  its  maintenance  and 
support,  be  permanently  kept  up,  its  existence  contin- 
ued, and  its  usefulness  maintained. 

QUALIFICATIONS    OF    WARDENS   AND   VESTRYMEN. 

First.  The  Qualifications  of  Wardens.  Only  commu- 
nicants should  ever  be  chosen  as  Wardens  of  a  Church. 
Happily,  in  most  of  the  States  and  Dioceses  it  is  re- 
quired by  Statute  or  Canon  that  a  person  must  be  a 
communicant  of  the  Church  to  render  him  eligible  for 
the  office  of  Warden,  and  it  is  to  be  hoped  that  the 
very  few  Dioceses  that  do  not  so  require  will  soon 
amend  their  Canon  Law,  or  secure  the  amendment  of 
the  Statute  Law,  if  that  be  necessary,  so  that  it  shall 
be  an  universal  requirement  in  every  Diocese  that  to 
be  a  Church  Warden  a  man  must  be  a  communicant. 
Certainly  the  Church  never  intended  that  her  Wardens 
should  not  be  of  her  communicating  members.  Even 
if  the  law  of  the  State  or  of  the  Diocese  does  not  re- 
quire the  Wardens  to  be  communicants,  yet  true 
Churchmen  in  every  Parish  should  see  to  it  that  only 
communicants  are  elected  as  Wardens  of  the  Church. 

While  in  most  of  the  Dioceses    the  qualified  voters 


146  LA  W  OF  THE  CHURCH. 

of  the  Parish  elect  the  Wardens  at  the  annual  Parish 
meeting',  in  several  Dioceses  the  law  provides  that 
the  Rector  shall  appoint  a  member  of  the  Vestry  as 
Senior  Warden,  and  the  Vestry  elect  one  of  their  num- 
ber as  Junior  Warden.  In  the  Dioceses  of  North  and 
East  Carolina  the  Rector  nominates  the  Senior  Warden, 
and  the  Vestry  elect  both  Wardens  from  among-  their 
own  number.  In  a  few  Dioceses,  as  in  the  Virginia 
and  Kentucky  Dioceses,  the  Vestry  elect  both  Wardens 
from  their  own  body. 

Second.  Qualifications  of  Vestrymen.  While  the  qual- 
ifications requisite  in  the  different  Dioceses  for  the 
office  of  Vestrymen  are  as  variant  as  are  the  quali- 
fications for  voters,  it  may  be  stated  as  a  general  rule 
that  only  a  qualified  voter  is  eligible  for  the  office  of 
Vestryman. — (Willcock  on  Corp  ,  Part  I.,  sec.  480.) 

In  most  of  the  Dioceses  the  only  required  qualifica- 
tion is  that  he  shall  be  a  male  voter.  In  New  York 
State  the  law  requires  that  a  Vestryman  must  be  a 
qualified  voter  and  have  been  baptized.  In  Vermont 
it  is  required  that  he  shall  be  a  communicant,  while  in 
the  Diocese  of  Massachusetts  the  Canon  merely  says 
that  he  shall  be  a  baptized  man. 

In  a  few  Dioceses  the  Canon  directs  that  only  com- 
municants shall  be  chosen  as  Vestrymen,  provided 
there  be  a  sufficient  number  of  male  communicants  in 
the  Parish. 

While  but  comparatively  few  Dioceses  as  yet  require 
that  Vestrymen  shall  be  communicants,  it  is  the  grow- 
ing mind  of  the  Church  that  all  her  officers  should 
be  chosen  from  among  her  communicating  members; 
certainly,  in  those  Parishes  where  there  are  a  sufficient 
number  of  well-qualified  male  communicants,  only  to 


ANNUAL  PARISH  MEETINGS.  147 

those  who  have  evidenced  their  loyalty  and  attach- 
ment to  her  doctrine,  discipline  and  worship,  and  their 
obedience  to  her  lawful  authority  by  being  confirmed, 
should  be  permitted  the  government  and  control  of 
her  temporalities. 

In  Maryland,  the  "Vestry  Act"  provides  that  Ves- 
trymen shall  take  and  subscribe  an  oath  of  support, 
fidelity  and  faithful  performance  of  the  office.  The 
provision  of  the  Act  is  as  follows  : 

"  VI.  And  be  it  enacted,  That  every  person  chosen  as 
a  Vestryman  shall,  before  he  acts  as  such,  take  and 
subscribe  the  oath  of  support  and  fidelity  required  by 
the  Constitution  and  form  of  government,  unless  such 
person  hath  before  taken  such  oath,  and  also  make 
and  subscribe  a  declaration  of  his  belief  in  the  Chris- 
tian religion,  and  he  shall  also  take  and  subscribe  the 
following  oath  of  office,  to  wit :  '  I,  A.  B.,  do  solemnly 
swear  that  I  will  faithfully  execute  the  office  of  a  Ves- 
tryman  of  Parish,  in  County,  without 

prejudice,  favor,  or  affection,  according  to  the  best  of 
my  skill  and  knowledge  ' ;  which  oaths  and  declara- 
tions any  Justice  of  the  Peace,  or  any  Vestryman  pres- 
ent may  administer  and  take." 

This  oath,  which  usually  is  placed  at  the  head  of  the 
Parish  Register,  each  Vestryman  is  required  to  sign  on 
his  election. 

In  the  Virginia  Dioceses  every  person  chosen  a  Ves- 
tryman is  required,  before  he  can  act  as  such,  to  sub- 
scribe the  following  declaration  and  promise  :  "  I  do 
believe  the  Holy  Scriptures  of  the  Old  and  New  Testa- 
ment to  be  the  Word  of  God,  and  to  contain  all  things 
necessary  to  salvation  ;  and  1  do  yield  my  hearty  as- 
sent   and    approbation    to   the   doctrines,  worship  and 


148  LA  W  OF  THE  CHURCH. 

discipline  of  the  Protestant  Episcopal  Church  in  these 
United  States  ;  and  I  promise  that  I  will  faithfully  ex- 
ecute the  office  of  Vestryman  of  Parish  (or 

Church),  in County,  according  to  my  best  know- 
ledge and  skill." 

Unless  the  law  expressly  provides  otherwise,  a 
majority  of  all  the  votes  cast  is  necessary  for  an  elec- 
tion. A  mere  plurality,  if  it  be  not  such  a  majority,  is 
insufficient,  and  fails  to  elect  to  the  office  of  Warden 
or  Vestryman. — [Angel  &  Ames  on  Corp.,  see.  127; 
Morawetz  on  Corp.,  sec.  354;  People  v.  Phillips,  I  Dem. 
\N.  Y.],  388;  People  v.  Devin,  17  ///.,  84,  17,  A.  &  E., 
Ency.  of  Law,  p.  47,  and  cases  therein  cited.) 

CERTIFICATE   OF   ELECTION. 

In  a  few  Dioceses  a  certificate  of  election  of  War- 
dens and  Vestrymen  is  required  to  be  made.  In  New 
York  State  the  Statute  requires  that  the  presiding 
officer  of  an  annual  election  shall  enter  the  proceed- 
ings of  the  meeting  in  the  record  book  of  the  Vestry, 
sign  his  name  thereto,  and  offer  the  same  to  as  many 
of  the  qualified  voters  present  as  he  shall  deem  suffi- 
cient, to  be  also  signed  by  them.  While  the  law  re- 
quires no  certain  number  of  qualified  voters  so  to  sign, 
two  such  voters,  besides  the  presiding  officer,  would 
probably  be  sufficient. 

In  Indiana  the  law  provides  that  the  clerk  and  teller 
of  the  annual  meeting  shall  file  a  certificate  of  election 
with  the  County  Recorder  within  ten  days  after  the 
election. 

In  the  Diocese  of  California  it  is  required  that  the 
Rector,  or,  in  his  absence,  the  Wardens,  shall,  within 
one  week    after  the   election,  forward  to   the  Bishop, 


ANNUAL  PARISH  MEETINGS.  149 

through  the  Secretary  of  the  Convention,  the  names 
of  the  Wardens,  Vestrymen,  Treasurer  and  Clerk 
chosen  at  such  meeting.  (For  forms  of  certificates  see 
Appendix  C.) 

In  every  Parish,  even  where  the  law  does  not  so  re- 
quire, a  record  of  the  proceedings  of  the  meeting, 
with  the  names  of  the  Wardens  and  Vestrymen 
elected  thereat,  and  that  they  each  received  a  majority 
of  the  votes  cast  at  said  election,  should  be  entered  in 
the  minute  book  of  the  Vestry,  signed  by  the  presiding 
officer  of  the  meeting  and  attested  by  the  Secretary 
thereof,  although  the  signature  of  the  Secretary  of  the 
meeting  would  probably  be  sufficient  in  all  cases  not 
otherwise  provided  for  by  the  Statute  or  Canon. 

In  many  Dioceses,  the  annual  meeting  also  elects 
the  required  number  of  delegates  to  the  Diocesan  Con- 
vention, and,  in  some  cases,  the  same  number  of 
alternate  delegates.  As  the  qualifications  of  such  dele- 
gates are  fully  provided  for  in  the  Constitution  and 
Canons  of  the  various  Dioceses,  they  need  not  be  par- 
ticularly noted  here. 

In  some  Dioceses  the  law  provides  that  these  dele- 
gates shall  be  elected  by  the  Vestry.  A  certificate  of 
such  election  must  be  sent  to  the  Secretary  of  the  Con- 
vention, signed  by  the  Rector,  or,  if  there  be  no  Rector, 
or  he  be  absent,  by  one  or  both  of  the  Wardens,  or  by 
the  Secretary  of  the  Vestry,  as  the  law  may  direct. 
(For  forms  of  such  certificates  see  Appendix  D.) 

SPECIAL   PARISH   MEETINGS. 

Special  Parish  meetings  will  seldom  be  found  neces- 
sary, and  in  some  Dioceses,  I  apprehend  such  meetings 
will  never  be  necessary  for  legal  purposes.     The  Ves- 


150  LA  W  OF  THE  CHURCH. 

try,  and  not  the  parishioners,  are  the  managing  officers 
of  the  corporation,  and  have  the  control  of  its  tem- 
poralities. 

In  some  Dioceses  a  special  Parish  meeting  must  be 
called  to  fill  any  vacancy  that  may  occur  in  the  Vestry, 
although  the  Canons  of  most  of  the  Dioceses  now  pro- 
vide that  the  remaining  members  of  a  Vestry  may  fill 
all  vacancies  in  their  own  body,  until  the  next  annual 
election. 

In  a  majority  of  the  Dioceses  the  consent  of  the 
members  of  the  Parish  is  made  necessary  by  the  Statute 
or  Canon  Law,  to  the  alienation  or  encumbering  of  the 
real  property  of  the  corporation. 

This  consent  can  only  be  obtained  at  a  meeting  of 
the  parishioners  duly  called  for  that  purpose.  With 
few  exceptions,  this  consent  would  be  legal  if  given  at 
the  annual  meeting,  provided  the  call  for  the  meeting 
clearly  specified  that  such  consent  would  then  be  asked 
for.  In  a  few  Dioceses  the  law  provides  that  a  special 
meeting  shall  be  called  for  that  purpose.  In  such  cases 
it  would  certainly  be  wiser  to  conform  strictly  to  the 
language  of  the  Statute,  and  call  a  special  Parish  meet- 
ing. The  consent  of  the  parishioners  is,  in  most  of  the 
Dioceses,  made  necessary  to  any  change  in  the  num- 
ber of  Vestrymen,  but  the  calling  of  a  special  Parish 
meeting  for  this  purpose  is  obviously  unnecessary,  unless 
the  Statute  or  Canon  Law  clearly  so  requires.  In  a  few 
Dioceses  a  special  meeting  of  the  Parish  is  made 
necessary  by  the  Canon  Law,  to  elect  delegates  to  any 
special  Convention  of  the  Diocese,  but  in  the  absence 
of  any  Canon  or  Statute  Law  so  requiring,  no  special 
meeting  of  the  Parish  need  be  called  to  elect  delegates 
to  any  such   Diocesan   Convention  or  Council,  as  the 


ANNUAL  PARISH  MEETINGS.  151 

delegates  duly  elected  to  represent  such  Parish  at  the 
preceding  or  succeeding  Annual  Convention  or  Council 
of  the  Diocese  will  be  legally  competent  to  represent 
the  Parish,  as  its  accredited  delegates,  in  any  Special 
Convention  or  Council  of  the  Diocese. 

Notice  of  a  special  Parish  meeting  must  be  given  as 
the  Canon  or  Statute  Law  directs,  usually  in  the  same 
form  and  manner  as  for  annual  meetings;  but  an  even 
more  strict  compliance  with  the  letter  of  the  law  is  re- 
quired for  special  than  for  annual  meetings.  The  no- 
tice must  state  clearly  and  explicitly  the  purpose  of 
the  meeting,  and  only  such  matters  can  legally  come 
before  the  meeting  as  are  stated  in  the  notice.  The  rule 
that  a  notice  calling  a  special  meeting  must  state  par- 
ticularly the  objects  of  such  meeting,  is  amply  sup- 
ported by  the  authorities. — (St.  Stephen  s  Church  Cases, 
25  Abb.  N.  C,  230;  Angell  and  Ames  on  Corp.,  sec.  489; 
TJiompson  on  Corp.,  see.  717.) 

The  meeting  must  be  conducted  in  the  same  manner 
as  the  annual  meeting,  and  is  subject  to  the  same  reg- 
ulations concerning  the  qualifications  of  voters,  and 
the  filing  of  a  certificate  when  so  required. 

CHANGE   OF   NAME. 

In  the  absence  of  any  express  provision  of  the  law 
to  the  contrary,  a  change  in  the  name  of  the  corpora- 
tion can  only  be  made  by  a  majority  (in  some  cases, 
two-thirds)  of  the  members  of  the  Parish.  Where  the 
law  does  not  direct  otherwise,  the  proper  course,  in 
case  a  change  of  name  was  deemed  desirable,  would  be 
for  the  Vestry  to  first  adopt  a  resolution  in  favor  of 
such  change,  and  then,  at  the  next  annual  meeting  of 
the  Parish,  or  at  a  special  meeting  duly  called  for  that 


1 52  LAW  OF  THE  CHURCH. 

purpose,  which  in  some  cases  is  required,  submit  the 
said  resolution  to  the  qualified  voters  of  the  Parish  for 
their  consideration  and  approval.  If  the  change  of 
name  be  adopted  at  such  meeting,  in  accordance  with 
the  requirements  of  the  law,  a  certificate  of  such 
action,  duly  verified  as  the  law  directs,  must  be  filed 
with  the  proper  officer;  upon  the  filing  of  such  certifi- 
cate the  change  is  completed,  and  the  corporation 
thereafter  shall  be  known  by  the  name  so  chosen  and 
set  forth  in  the  certificate.  In  several  States,  as  in 
New  York,  when  a  change  in  the  name  of  the  corpora- 
tion is  desired,  application  must  be  made  to  the  Su- 
preme Court,  or  to  the  Court  designated  for  that  pur- 
pose. The  application  or  petition  should  set  forth 
the  name  of  the  corporation,  and  the  fact  of  its  being 
duly  incorporated  under  the  laws  of  the  State;  the 
reasons  for  desiring  a  change  of  name,  or  facts  show- 
ing the  inconvenience  of  the  corporate  name;  that  the 
petitioner  or  petitioners  were  duly  authorized  to  make 
such  application  by  the  majority,  or  two-thirds  major- 
ity, as  the  law  may  require,  of  the  corporators  (or 
parishioners);  concluding  with  a  prayer  that  the  cor- 
poration may  be  permitted  to  assume  the  corporate 
name,  as  before  determined  upon.  This  petition  must 
be  properly  verified  as  the  law  directs. 

The  Court  may  thereupon  issue  an  order,  granting 
the  proposed  change,  and  directing  that  it  be  duly 
published,  if  the  law  so  requires,  and  filed,  together 
with  the  petition,  affidavit,  and  proof  of  publication, 
with  the  officer  designated  for  that  purpose.  The 
due  filing  of  these  papers  completes  the  change  of  the 
corporate  name. 


CHAPTER  III. 


OF   THE   VESTRY. 


THE  MODERN  Vestry  system,  as  we  have  it 
here  in  America,  was  unknown  to  the  Church 
in  primitive  times.  There  were  congregations 
of  believers,  there  were  Sacraments,  there  were  Bishops, 
Priests,  and  Deacons,  but  there  were  no  Vestries. 
Many  believe  the  Vestry  system  of  the  American 
Church  to  be  a  providential  creation,  and  the  most 
efficient  of  all  parochial  systems.  However  the  modern 
Vestry  system  may  be  regarded,  nobody  expects,  and 
few,  I  apprehend,  desire  to  see  it  done  away  with.  It 
has  become  a  part  of  the  American  Church  organiza- 
tion, and  is  now  generally  necessary  to  the  fullest  de- 
velopment of  Church  life  in  an  American  Parish,  and 
is  therefore  to  be  respected  and  utilized. 

At  the  present  day,  with  few  exceptions,  our  Parishes 
are  organized  as  corporations  under  the  name  of  Rec- 
tor, Wardens  (or  Church  Wardens)  and  Vestrymen. 
The  very  name  shows  that  the  corporation  is  made  up 
of  three  separate  and  distinct  component  parts,  the 
Rector,  the  Wardens,  and  the  Vestrymen,  each  part 
being  necessary  to  its  corporate  life.  These  three 
component  and  integral  parts  constitute  the  Vestry  of 
a  Church,  corresponding  to  the  select  Vestry  of  the 
Church  of  England,  and  representing  the  whole  body 
of  the  parishioners. 

While  in  one  or  two  Dioceses  the  name  Vestry  is 
given  to  the  Vestrymen,  and  the  corporation  is  de- 


154  LA  IV  OF  THE  CHURCH. 

nominated  "  The  Rector,  Wardens  and  Vestry,"  the 
word  "  Vestry  "  in  this  work,  will  be  used  in  its  true 
sense,  as  meaning  the  corporation,  "the  Rector, 
Wardens  and  Vestrymen"  of  a  Parish.  When  the 
Rectorship  of  a  Parish  is  vacant,  then  the  Wardens  and 
Vestrymen,  with  certain  restrictions  as  hereinafter 
noted,  constitute  the  Vestry. 

The  Vestry  are  the  corporate  Trustees  of  the  Church, 
and  to  them  the  law  confides  the  management  and  con- 
trol of  its  temporalities. 

POWERS   OF   A   VESTRY. 

It  is  a  well  settled  principle  of  law,  that  a  corpora- 
tion created  by  Statute  possesses  only  such  powers  as 
are  conferred  upon  it  by  the  Statute,  either  expressly 
or  as  incidental  to  its  very  existence.  In  order  that  a 
corporation  may  derive  a  power  by  implication,  it  must 
appear  that  the  power  thus  sought  to  be  implied  is  so 
necessary  to  the  enjoyment  of  some  specially  granted 
right,  that  without  it  the  right  would  fail. — {Sedgwick 
on  Con.  of  Stat.  Law,  p.  292;  Smith  v.  Moffat,  1  Barb., 
65;  Gaines  v.  Coates,  51  Miss.,  335;  Tlumpson  v.  Wetter, 
85  ///.,  197;  P.  R.  R.  Co.  v.  Canal  Coin's,  21  Penn  ,  9.) 

It  is  also  a  well  recognized  rule  that  charters  of  all 
corporations  are  grants  of  power  to  exercise  certain 
rights  as  specified  in  such  charters,  and  are  to  be  con- 
strued strictly. — {Sedgwick  on  Con.  Stat.  Laze,  pp.  267, 
295  ;  Robertson  et  al.  v.  Btcttions  et  at ,    11  A7.  Y.,  243.) 

In  Salem  Mill  Dam  Corp.  v.  Ropes  (6  Pick.  [Mass.], 
23),  the  Court  held :  "  The  power  of  corporations  is 
derived  only  from  the  act,  grant,  charter  or  patent  by 
which  they  are  created.  In  this  Commonwealth,  the 
source  and  origin  of  such  power    is  the  Legislature, 


THE   VESTRY.  155 

and  corporations  are  to  exercise  no  authority,  except 
what  is  given  by  express  terms  or  by  necessary  impli- 
cation by  that  body." 

A  Vestry  being  a  corporate  body,  its  powers  are 
special  powers,  granted  by  Statute,  and  the  Statute 
conferring  them  must  be  strictly  construed.  The 
powers  so  granted  cannot  be  exercised  for  any  collat- 
eral purpose. — (Dartmouth  College  v.  Woodzvard,  4 
Wheat.,  518;  Diligent  Fire  Co.  v.  Commonwealth,  75 
Pa.  St.,  Rep.  291;  Heiskellv.  Mayor,  etc.,  65  Md.,  125.) 

A  Vestry  cannot  bind  the  Parish  by  any  action  of 
theirs,  beyond  the  express  powers  granted  them  by 
the  Act  of  Incorporation,  or  the  Church  Charter,  or 
the  Canons  of  the  Church. — (Miller  v.  Church,  4  Phil. 
48;  Bailey  v.  M.  E.  Church,  etc.,  71  Me.,  472.) 

It  must  also  be  remembered  that  such  powers  relate 
only  to  the  temporal  affairs  of  the  Parish,  and  touch 
not  the  spiritual,  which  are  under  the  exclusive  control 
and  direction  of  the  Rector,  in  subordination  to  the 
Ecclesiastical  Authority  of  the  Diocese. 

The  powers  of  a  Vestry  may  thus  be  enumerated  : 

First.  They  are  the  Trustees,  and  have  the  custody 
and  administration  of  all  the  corporate  property  and 
temporalities,  real  and  personal,  of  the  Parish,  and  the 
revenues  therefrom,  as  specified  by  Statute  or  Canon 
Law,  or  by  the  Church  Charter. 

Second.  To  erect  Church  edifices,  Rectories,  Parish 
Houses,  and  other  buildings  for  the  use  of  the  Parish 
and  to  alter  and  repair  the  same  when  necessary. 

Third.  To  regulate  and  order  the  renting  of  pews,  and 
to  dispose  of  all  moneys  accruing  therefrom,  and  all  other 
moneys  received  by  them,  excepting  the  canonical  col- 
lections, as  may  be  for  the  best  interests  of  the  Church. 


156  LAW  OF  THE  CHURCH. 

Fourth.  To  make  by-laws  for  the  orderly  management 
of  the  temporal  affairs  of  the  Parish,  provided  they  be 
conformable  and  subordinate  to  the  laws  of  the  State, 
and  the  Constitution  and  Canons  of  the  Church  ;  to 
appoint  a  Secretary,  a  Treasurer  and  such  other  officers 
of  the  corporation  as  they  may  deem  necessary ;  and 
to  make,  have,  and  use,  a  common  seal  and  to  alter  the 
same  at  pleasure. 

Fifth.  To  elect  conformably  to  the  Canons  of  the 
Church,  and  the  Statutes  of  the  State,  a  Rector  to  fill 
a  vacancy,  whenever  occurring,  in  the  Rectorship  of 
the  Parish,  and  to  fix  the  amount  of  his  salary  or 
compensation  ;  also  to  request  the  Bishop  to  have  him 
instituted  as  Rector,  if  he  be  so  disposed  and  that 
office  be  used  in  the  Diocese. 

While  in  a  few  States  and  Dioceses,  these  powers,  as 
enumerated,  are  somewhat  modified  by  the  specific 
provisions  of  the  Statute  or  Canon  Law,  or  the  Church 
charter,  they  will,  I  believe,  be  found  to  represent 
fairly  the  varied  powers  conferred  upon  Vestries  by 
the  law  in  the  majority  of  the  Dioceses. 

In  every  State  and  Diocese  it  will  be  found  that  the 
Statute  Law  and  the  Canons  culminate  in  the  one  idea 
of  making  the  Vestry  the  legal  custodians  of  the  tem- 
poralities of  the  Parish. 

The  duties  of  a  Vestry  are  well  set  forth  in  the 
"  Report  of  the  Joint  Committee  on  the  Functions  of 
Rectors,  Wardens  and  Vestrymen"  to  the  General 
Convention  of  1880.  To  their  Report  they  appended  a 
proposed  Canon,  of  which  the  following  is  a  part :  "  It 
is  the  duty  ot  the  Vestry  to  secure  to  the  Rector  and 
Assistant  Minister  a  proper  maintenance  and  support, 
regarding  it  as  a  most  sacred  duty,  and  as  a  claim  of 


THE   VESTRY.  157 

prior  obligation  and  force,  in  order  that  they  may  be 
free  to  perform  the  duties  of  their  sacred  calling ;  to 
see  that  the  property  of  the  Parish  is  cared  for  and 
administered  in  accordance  with  the  Canons,  Laws,  and 
customs  of  the  Church  ;  that  the  Church  buildings  and 
Parsonage  are  kept  in  repair ;  that  the  Parish  revenues 
are  properly  expended;  and  to  elect  the  Rector  and 
other  Ministers  as  provided  by  this  Canon." — {Journal 
Gen.  Con.,  1880,/.  468.) 

The  Wardens  and  Vestrymen,  as  the  representatives 
of  the  laity,  should  ever  seek  to  represent  "  the  best 
intelligence,  the  most  loyal  Churchmanship,  and  the 
most  earnest  piety  of  the  Parish  in  matters  temporal 
and  spiritual."  They  are  ever  to  remember  that  the 
temporal  matters  confided  to  them  pertain  to  the 
Church  of  Christ,  and  that  "their  trusteeship  has  a 
spiritual  bearing  and  should  work  in  and  with,  and  be 
in  subservience  to,  the  great  object  of  parochial  organ- 
ization, viz.,  the  ingathering  of  souls  into  the  fold  of 
Christ." 

CUSTODY   OF   THE   REAL   ESTATE   OF   THE 
CORPORATION. 

The  law  vests  the  title  to  the  real  estate  of  the  cor- 
poration in  the  Rector,  Wardens  and  Vestrymen,  as 
Trustees,  collectively,  for  all  corporate  purposes.  It 
also  confides  to  them  the  custody  and  management  of 
such  property,  and  gives  them  power,  under  certain 
restrictions,  to  sell,  mortgage,  and  lease  the  same. 
They  may  also  take,  by  gift  or  purchase,  other  real 
estate,  and  improve  the  same  for  the  use  and  benefit 
of  the  Church.  The  amount  in  value  of  the  property, 
aside  from  that  used  exclusively  for  religious  purposes, 


158  LA  W  OF  THE  CHURCH. 

which  they  may  hold,  is,  in  several  States,  limited 
by  law.  In  New  York  they  may  hold  property  not 
exceeding  in  value  $2,000,000,  and  whose  yearly  in- 
come does  not  exceed  $100,000.  In  New  Jersey,  the 
amount  is  limited  to  a  yearly  income  not  exceeding 
$2,000,  but  provision  is  made  that  if  the  corporation 
desires  to  have  and  enjoy  a  larger  amount  than  that  to 
which  it  is  limited  by  the  act  of  incorporation,  they 
may,  by  a  majority  vote,  adopt  a  resolution  declaring 
such  desire  and  stating  the  amount  to  which  it  is  to 
be  increased.  This  resolution,  certified  and  authen- 
ticated under  the  common  seal  of  the  corporation  and 
duly  verified  by  the  oath  of  the  Secretary  thereof,  must 
then  be  filed  in  the  office  of  the  Secretary  of  State,  and 
upon  the  filing  thereof  the  corporation  may  then  have, 
hold  and  enjoy  any  real  or  personal  property  for  the 
use  and  benefit  of  said  corporation  not  exceeding  the 
increased  amount  named  in  the  resolution  so  filed.  In 
the  majority  of  the  States  the  law  places  no  limitation 
on  the  amount  in  value  of  the  property  that  the  cor- 
poration may  hold. 

In  Michigan,  where  there  is  no  such  restriction,  the 
law  provides  that  the  Vestry  shall  not  hold  or  use  any 
real  estate  not  reasonably  necessary  for  a  Church  build- 
ing, Chapel,  lecture  and  school  rooms,  and  for  dwellings 
for  the  Ministers  thereof,  for  a  longer  period  than  ten 
years. 

In  most  of  the  States  the  law  places  some  restrictions 
upon  the  power  of  the  Vestry  to  sell,  mortgage  or  lease 
the  real  estate  of  the  corporation.  In  some  States,  as 
in  New  York,  the  Vestry  may  not  sell  any  of  the  real 
property  of  the  corporation  without  first  applying  to 
and  obtaining  permission  of  the  Court  therefor.     In  the 


THE   VESTRY.  159 

majority  of  the  States  the  consent  of  the  members  of 
the  Parish  must  first  be  obtained  at  a  meeting  duly 
called  for  that  purpose,  before  the  Vestry  may  legally 
alienate  or  encumber  any  of  the  real  property  of  the 
corporation.  The  consent  of  the  Bishop  and  Standing 
Committee  to  the  alienation  and  encumbering  of  the 
real  estate  of  the  corporation  is  most  wisely  provided 
for  by  Statute  Law  in  some  States.  But  if  the  rector- 
ship of  the  Parish  be  vacant,  then,  as  will  be  shown 
hereafter,  the  consent  of  the  Bishop  is  necessary  to 
such  alienation  in  the  absence  of  any  Statute  Law  to 
the  contrary. 

Although  the  Canons  of  the  Church  require  the 
consent  of  the  Bishop  and  the  Standing  Committee  to 
the  alienation  of  the  real  property  of  the  corporation, 
the  Courts  have  decided  that,  to  have  any  legal  effect, 
it  must  also  be  a  provision  of  the  Statute  Law.  "  Titles 
to  property  must  be  determined  by  the  laws  of  the 
State." — {Sokier  v.  Trinity  Church,  109  Mass.,  1.) 

All  proceedings  affecting  the  title  to  the  property 
of  the  Church  must  be  taken  in  the  corporate  name, 
viz.,  "  The  Rector,  Wardens  (or  Church  Wardens)  and 
Vestrymen  of- Church,"  etc. 

In  some  States  it  has  been  decided  that  the  Vestry 
may  institute  proceedings  to  sell  the  property  of  the 
Church  without  consulting  the  members  of  the  Parish. 
— {Church  v.  Church,  46  N.  V.,  131.) 

In  the  case  of  Mason  v.  Muncaster  et  al.  (9  Wheat., 
445),  involving  the  question  as  to  the  right  of  the 
parishioners  of  the  whole  Parish  to  be  made  parties  to 
a  bill  to  dispose  of  certain  property  of  the  Parish,  as 
being  cestuis  que  trust  of  that  property,  the  Supreme 
Court  of  the  United  States  decided  that    "in  an  ac- 


160  LA  W  OF  THE  CHURCH. 

curate  and  legal  sense,  the  parishioners  are  not  the 
cestuis  que  trust,  for  they  have  individually  no  right  or 
title  to  the  property.  It  is  the  property  of  the  Parish 
in  its  corporate  or  aggregate  capacity,  to  be  applied 
and  disposed  of  for  parochial  purposes  under  the  au- 
thority of  the  Vestry,  who  are  its  legal  agents  and 
representatives."  While  the  decisions  of  many  of  the 
State  Courts  would  seem  to  indicate,  by  implication,  a 
different  opinion,  referring  to  the  parishioners  as  cestuis 
que  trust,  without  formally  deciding  them  to  be  such, 
yet  I  apprehend  that  the  decision  of  the  Supreme 
Court  in  the  above  case,  that  the  members  of  a  Parish 
are  not,  in  an  accurate  and  legal  sense,  the  cestuis  que 
trust  of  the  Church  property,  is  strictly  correct,  their 
interest  in  such  property  being  only  a  corporate,  and 
not  an  individual  interest,  the  property  being  man- 
aged and  applied  for  the  benefit  of  the  corporation,  and 
not  for  the  members  thereof  as  individuals. 

The  mode,  extent  and  circumstances  under  which 
such  property  is  to  be  applied  is  wholly  within  the 
discretion  of  the  Vestry  in  their  corporate  capacity,  but 
they  cannot  divert  such  property  to  any  other  purpose 
than  the  maintenance  of  the  Church's  worship  and  the 
propagation  of  her  doctrines  as  defined  and  set  forth 
in  her  Book  of  Common  Prayer,  nor  sever  their  con- 
nection with  the  Church  and  unite  with  any  other 
religious  body  without  impairing  their  title  to  the 
property  of  the  Parish  by  them  holden  in  trust  there- 
for.— {Jones  v.  Wadsworth,  if  Phila.  Rep.,  227;  Isham 
v.  Trustees,  etc.,  63  How.  Pr.,  465;  Watson  v.  Jones,  13 
Wall.,  679.) 

(For  forms  relating  to  the  transfer  of  real  property, 
see  Appendix  E.) 


THE   VESTRY.  161 

CORPORATE    CAPACITY. 

It  is  a  well  established  principle  of  law  that  Vestry- 
men have  no  official  powers  as  such,  save  when  assem- 
bled in  a  Vestry  meeting  duly  called. 

They  have  no  individual  authority  to  bind  the  cor- 
poration, although  the  majority  of  them,  or  even  the 
whole  number,  acting  singly  and  not  collectively  as  a 
corporate  body,  should  assent  to  some  particular 
transaction. — {People  s  Bank  v.  St.  Anthony's  Church, 
109  N.  V.,  512.) 

The  rule  was  well  stated  by  the  Supreme  Court  of 
Pennsylvania  in  a  recent  case,  involving  the  legality 
of  a  resolution  purporting  to  have  been  passed  by  the 
Vestry  of  a  Church  and  signed  by  a  majority  of  the 
Vestrymen,  but  which,  in  fact,  was  adopted  at  a  meet- 
ing when  less  than  a  legal  quorum  attended,  and  after- 
wards signed  by  a  Vestryman  who  was  not  present  at 
the  meeting.  The  Court  held  that  the  resolution  was 
not  binding  on  the  corporation.  "  The  Vestry  of  a 
Church  as  the  representatives  of  a  corporate  body 
must  meet  in  order  to  take  official  action.  They  can- 
not act  singly  upon  the  streets,  or  wherever  they  may 
be  found.  This  is  because  they  are  required  to  be 
deliberate.  It  is  the  right  of  the  minority  to  meet 
the  majority,  and,  by  discussion  and  deliberation,  to 
bring  them  over  if  possible  to  their  own  views." — 
(Appeal  of  Ritenhouse,  21  At.  Rep.,  254.  See  also  United 
Brethren,  etc.,  v.  Van  Dusen,  37  Wis.,  54;  Leonard  v. 
Lent,  43  Wis.,  83 ;  St.  Patricks  Church  v.  Gavalon, 
82  ///.,  170;  Constant  v.  Rector,  etc'.,  4  Daly,  305;  Cam- 
imyer  v.  The  Churches,  2  Sand.  Ch.  Rep.,  186;  1 
Waterman  on  Corp.,  sec.  70;  I  Moraivetz  on  Corp., 
sec.  531.) 


1 62  LAW  OF  THE  CHURCH. 

EXTENT     OF    VESTRY'S    POWER     OVER     THE    CHURCH 
BUILDINGS. 

The  church  edifice  is  held  in  trust  by  the  Vestry  for 
religious  purposes  only,  and  they  have  the  custody 
thereof  under  the  Rector. — {Burn  s  "  Ecc.  Law''   Vol. 

I.,/.  399-) 

But  the  direction  of  its  use  belongs  exclusively  to 
the  Rector,  and  access  to  it  is  entirely  under  his  con- 
trol. In  the  "Office  of  Institution,"  the  keys  of  the 
church  are  delivered  to  the  Rector  as  a  token  of  the 
delivery  of  the  church  edifice  itself,  and  the  inference 
therefrom  is  conclusive  that,  virtute  officii,  the  Rector 
has  exclusive  control  of  the  church.  The  courts,  both 
in  England  and  in  this  country,  have  ever  so  held,  and 
the  rule  may  be  stated  as  an  universal  one,  that  to  the 
Rector  alone,  under  the  Bishop,  belongs  the  absolute 
control  of  the  use  of  the  church  edifice  and  access 
thereto. 

As  this  question  will  be  more  fully  considered  and 
authorities  cited,  in  the  chapter  relating  to  the  Rector 
and  his  powers,  further  consideration  of  the  question 
at  this  time  is  unnecessary.  I  will  only  quote  the 
opinion  of  Judge  Hoffman  on  this  point. 

"  The  Law  of  the  Church  at  large,  and  especially 
the  Law  of  the  Church  of  England,  the  Common  Law 
itself,  vested  the  right  over  the  church  edifice  and  its 
employment  in  the  Rector.  The  authority  of  Church 
Wardens  was  subordinate  to  his.  When  the  Church 
avails  itself  of  an  act  of  incorporation,  or  other  statute 
of  the  civil  power,  it  is  bound  to  take  it  in  its  true  ex- 
tent and  meaning,  but  no  further.  The  title,  then, 
to   the    church,   and  all    church   property,   is    in    the 


THE   VESTRY.  163 

trustees  collectively,  for  all  corporate  purposes; 
but  there  is  another  class  of  purposes,  purely  Eccle- 
siastical, as  to  which  the  Statute  did  not  mean  to 
interfere  or  prescribe  any  rule.  These  are  to  be  con- 
trolled by  the  Law  of  the  Church.  One  conclusion 
seems,  for  example,  deducible  from  these  principles 
— that  the  control  and  possession  of  the  church  edi- 
fice upon  Sundays,  and  at  times  when  open  for  Divine 
services,  appertains  exclusively  to  the  Rector.  This, 
it  seems  to  the  author,  is  implied  in  his  call,  essential 
to  his  office,  and  must  be  paramount. "' — {Hoffman's 
"  Laiv  of  the  Church"  p.  266.) 

The  same  rule  undoubtedly  applies  to  Parish  and 
Guild  houses,  and  all  other  buildings,  owned  by  the 
corporation,  that  are  used  for  Ecclesiastical  purposes. 
— (Humphrey  s  "  Law  of  the  Church,"  p.  34;  Lynd.  v. 
Menzies  et  at.,  33.  N.J.  L.  Rep.,  162.) 

To  the  Vestry  belong  the  power  to  erect  a  church 
edifice  and  such  other  buildings  as  they  may  deem  nec- 
essary for  the  best  interests  of  the  Parish,  and  to  alter 
and  repair  those  already  erected.  It  is  also  their  duty 
to  see  that  the  property  of  the  corporation  is  kept  in 
good  order  and  well  repaired. 

By  Canon  £5  of  the  Canons  of  1603,  it  was  made  the 
duty  of  the  Church  Wardens  or  questmen  to  see  that 
the  churches  were  kept  well  and  sufficiently  repaired  ; 
that  the  windows  be  well  glazed,  and  the  floors  kept 
paved,  and  all  things  there  in  an  orderly  and  decent 
sort,  "as  best  becometh  the  House  of  God,  and  is 
prescribed  in  an  homily  to  that  effect.  The  like  care 
they  shall  take  that  the  churchyards  be  well  and  suf- 
ficiently repaired,  fenced,  and  maintained,  with  walls, 
rails,  or  pales,  as  have  been  in  each  place  accustomed, 


164  LA  W  OF  THE  CHURCH. 

at  their  charges  unto  whom  by  law  the  same  apper- 
tained." 

PEWS   AND   PEW-HOLDERS. 

The  Vestry  have  complete  control  over  the  pews, 
and  may  sell,  rent,  or  declare  them  free  to  all  worship- 
pers, as  they  may  deem  for  the  best  interests  of  the 
Church. 

In  churches  where  the  pews  are  rented,  it  is  the 
duty  of  the  Vestry  to  fix  the  rental  price  of  the  pews, 
attend  to  the  renting  of  the  same  and  collect  the  rents 
thereof,  or  cause  them  to  be  collected  under  their 
direction. 

It  seems  to  be  the  better  opinion  that,  in  the  ab- 
sence of  any  express  stipulation  or  agreement  in  the 
matter,  a  person  renting  a  pew  will  be  considered  as 
renting  it  for  that  length  of  time  for  which  bills  for 
pew  rents  are  made  payable;  as,  for  instance,  if  pew 
rents  are  made  payable  at  the  beginning  or  end  of  each 
month  or  quarter,  the  pew  will  be  considered  as  rented 
by  the  month  or  quarter,  as  the  case  may  be. 

It  is  also  the  duty  of  the  Vestry  to  attend  to  the 
seating  of  strangers  and  members  of  the  congregation 
at  times  of  Divine  service. 

The  individual  pew-holder  has  only  the  right  of  use 
and  occupation  of  a  pew  when  in  attendance  on  the 
public  services  of  the  Church.  The  right  of  property 
in  such  pew  belongs  to  the  corporation. 

If  a  pew  be  purchased  it  will  require  a  deed  to  pass 
the  title  and  vest  it  in  the  purchaser. — {First  Bap. 
Church  v.  Bigelow,  16  Wendell,  28  ;  St.  Paul's  Church  v. 
Ford  et  al.,  34  Barb.,  16.) 

The  right  of  a  pew-owner  in  a  pew  thus  acquired  by 


THE   VESTRY.  165 

deed  is  an  incorporeal  hereditament,  and  has  some  of 
the  qualities  of  realty,  but  no  such  right  attaches  to  a 
pew  so  acquired,  as  will  prevent  a  sale  of  the  church  edi- 
fice.—(  Wheaton  et  al.  v.  Gates  et  al,  18  N.  Y.  Rep.,  395.) 

A  purchaser  of  a  pew  takes  the  same  with  pre- 
sumptive knowledge  of,  and  assent  to,  this  condition. 

"  The  question  of  remuneration  or  an  equivalent 
right  to  a  pew  in  a  new  church,  if  erected,  must  be  left 
to  subsequent  adjustment." — {Hoffman  s  "  Law  of the 
Church" p.  257;  Heeney  v.  St.  Peter s  Church,  2.  Edw. 
Ch.  Rep.  608;  Kellogg  v.  Dickinson,  18  Vt.  Rep.  266; 
Daniel  v.  Wood,  I  Pick.,  102.) 

The  owner  of  a  pew  may  maintain  an  action  of  tres- 
pass against  an  intruder. — {Shaw  v.  Beveridge,  3  Hill 
26.) 

In  a  free  church  the  Vestry  have  entire  control  of 
the  pews,  and  may  direct  what  pews  shall  be  occupied 
by  the  different  members  of  the  congregation.  They 
may  also  request  any  one  to  vacate  any  certain  pew, 
and  have  the  legal  right  to  enforce  the  same.  —{Sheldon 
v.  Vail,  28  Hun.,  354.) 

CUSTODY  OF  THE  REVENUES  OF  THE  CHURCH. 

We  have  already  seen  that  the  title  and  the  custody 
of  the  property  of  the  corporation  are  exclusively  in 
the  Vestry,  as  trustees  thereof. 

The  right  to  have,  hold  and  use  all  the  income, 
rents  and  profits,  if  any,  of  all  such  property  is  also 
in  the  same  body. 

To  this  rule  there  is,  however,  one  exception.  If  a 
bequest  has  been  made,  appropriating  the  income 
thereof  to  the  support  of  the  Rector  of  the  Parish,  dis- 
tinctly and  exclusively,  he  has  the  right  to  such  in- 


166  LA  W  OF  THE  CHURCH. 

come,  unless  by  consent  in  writing  he  has  qualified 
such  right,  or  if  when  a  Rector  received  a  call  to  a 
Parish,  the  call  explicitly  reserved  a  certain  sum  out 
of  such  income  for  the  support  of  services  at  a  chapel, 
and  such  call  be  duly  accepted  in  writing,  he  would  un- 
doubtedly be  bound  thereby  — {Hoffman's  "  Ecc.  Law" 

p.  83  ) 

To  the  Vestry  also  belongs  the  right  of  ordering  the 
disbursement  of  all  moneys  received  by  them,  except 
the  canonical  offerings,  for  the  best  interests  of  the 
Church.  But,  as  has  already  been  stated,  they  cannot 
divert  any  of  such  revenue  to  any  other  purpose  than 
the  maintenance  of  her  worship  as  set  forth  and  estab- 
lished in  her  Book  of  Common  Prayer,  the  dissemina- 
tion of  her  doctrine  and  teachings  as  contained  in  her 
authorized  standards,  and  the  furtherance  of  her 
spiritual  and  temporal  interests. — {Chase  v.  Cheney,  58 
///.,  509 ;  Nelson  v.  Benson,  69  ///.,  27 ;  Isham  v. 
Fullager,  14  Abb.  N.  C,  363  ;  Deaderick  v.  Lampson  11, 
Heisk.  \_Tenn.~],  523.) 

The  courts  will  restrain  any  attempt  by  a  Vestry  to 
maintain  a  Rector  or  Minister  who  has  been  duly  de- 
posed by  the  proper  authority. 

Any  member  of  the  corporation  may  make  applica- 
tion to  the  courts  to  restrain  a  Vestry  from  so  divert- 
ing the  revenues  of  the  Church. — {Church  v.  Botvden, 
14  Abb.  N.  C,  356;  Isham  v.  Fullager,  Idem,  363.) 

A  Vestry  may  also  enforce  the  payment  of  subscrip- 
tions made  for  religious  purposes,  when  it  can  be  shown 
that,  relying  upon  such  subscription,  they  have  taken 
action  involving  the  expenditure  of  money;  also 
"  whenever  several  persons  subscribe  upon  a  mutual 
reliance  upon  each  other,  each  subscriber  may  be  com- 


THE   VESTRY.  167 

pelled  to  pay  what  he  promised." — {Rickey's  "  Church- 
man's Hand  Book"  p.  38.  See  also  Underwood v.  Wal- 
dron,  \z  Mich.  Rep.,  7$  ;  C^mstock  v.  Howd,  15  Mich. 
Rep,  237.) 

With  few  minor  exceptions,  which  will  be  noted 
later  under  the  head  of  "  Duties  of  Wardens,"  the 
Vestry  alone  have  the  power  to  contract  debts  that 
will  render  the  property  of  the  Parish  legally  liable  for 
the  payment  thereof.  The  Rector  has  no  power  to 
incur  liabilities  binding  upon  the  Vestry. 

BY-LAWS. 

While  the  laws  of  many  of  the  States  provide  that 
Vestries  may  make  such  by-laws,  or  rules  and  orders 
for  the  management  of  the  property  and  the  regula- 
tion of  the  affairs  of  the  Church,  as  they  may  deem 
necessary,  the  power  to  make  by-laws  or  rules  for  the 
government  of  a  corporation  is  incident  to  its  creation, 
without  any  formal  word:-  conferring  it. — {In  re  Direc- 
tors L.  I.  R.  R.,  19  Wendall,  37.) 

Two  important  rules  of  law  should,  however,  be 
noted  in  connection  therewith :  First,  such  by-laws 
must  be  necessary  or  convenient  to  the  carrying  out 
of  the  purposes  of  its  creation;  and  second,  they  must 
be  conformable  and  subordinate  to,  and  not  inconsist- 
ent with,  the  law  of  the  land,  the  law  of  the  Church, 
cr  the  Charter  of  the  Parish. —  Taylor  v.  Griswold,  14 
N.  J.  L.  Rep.,  222;  Commonzvcalth  v.  Cain,  5  Serg.  and 
Rawie  {Pa.  Rep],  510.) 

In  Vestry  of  St.  Luke's  Church  v.  Matthews  (4 
Desaus.,  5/8),  the  Court  declared  that  "a  new  by-law 
requiring  a  new  qualification  to  entitle  persons  other- 
wise  qualified  to  vote   was  therefore  an  attempt  to 


168  LA  W  OF  THE  CHURCH. 

transcend  the  powers  given  and  to  alter  the  qualifica- 
tion of  voters,  and  was  a  violation  of  the  Charter." — 
(See  also  McDermott  v.  Board  of  Police,  5  Abb.  Pr.  Rep., 
422;  Brick  Pres.  Church  v.  Mayor,  etc.,  5  Cozven,  538; 
People  ex.  rel.,  v.  Chicago  Live  Stock  Exchange,  48 
N.  E.  R.,  1062;  Prickttt  v.  Wells,  117  Mo.  Rep.,  502.) 

ELECTION   OF   RECTOR. 

It  may  be  stated  as  a  general  rule,  having  but  few 
exceptions,  that  to  Vestries  is  given  the  power  of 
electing  the  Rector  of  a  Parish,  and  the  fixing  of  his 
salary  or  compensation.  They  also  have  the  power  of 
electing  a  Secretary  or  Clerk,  a  Treasurer,  and  such 
other  officers  as  they  may  deem  necessary  for  the 
interests  of  the  Corporation. 

In  only  a  few  States  have  the  members  of  the  Parish 
any  voice  or  vote  in  the  matter.  In  the  Diocese  of 
Colorado,  the  Canons  provide  that,  if  the  Vestry  fail 
to  fill  a  vacancy  in  the  Rectorship  of  a  Parish  within 
three  months,  the  Ecclesiastical  Authority  shall  nomi- 
nate to  the  Wardens  a  Priest  to  fill  the  same.  Upon 
receiving  the  nomination,  the  Wardens  shall  call  a 
meeting  of  the  qualified  voters  of  the  Parish,  and  sub- 
mit to  them  such  nomination.  If  a  majority  of  the 
votes  shall  be  cast  for  the  nominee,  he  shall  be  declared 
the  Rector  of  the  Parish.  In  case  the  nomination 
should  be  rejected,  the  Ecclesiastical  Authority  shall 
make  a  second,  and,  if  necessary,  a  third  nomination. 
Should  this  nomination  be  rejected,  then  the  Bishop 
may  appoint  some  Minister  as  Lcum  tenens,  to  act  until 
the  next  annual  Council.  It  is  also  made  the  duty  of 
the  Parish  to  provide  for  the  comfortable  support  of 


THE   VESTRY.  169 

such  loctim  tenens,  and  to  accord  to  him  all  the  rights 
and  powers  of  a  Rector. 

In  the  Diocese  of  Connecticut  the  Canons  provide 
that  the  choice  and  salary  of  a  Rector  shall  not  be 
within  control  of  the  Vestry,  unless  by  special  vote  of 
the  Parish. 

In  the  Diocese  of  Western  Michigan  the  Canons 
provide  that  if,  after  the  expiration  of  six  months,  the 
Vestry  of  any  Church  that  has  become  vacant  shall  fail 
to  call  or  settle  a  Minister,  then  it  shall  be  the  duty  of 
the  Bishop  to  appoint  one,  and  he  shall  notify  the 
Vestry  of  such  appointment,  and  upon  their  concur- 
rence, the  Minister  so  appointed  shall  become  the  Rec- 
tor of  the  Church. 

In  the  Diocese  of  Fond  du  Lac  the  Canons  provide 
that  if  the  Vestry  of  a  vacant  Parish  fail  to  fill  the  va- 
cancy within  three  months,  then  "  it  shall  be  the  duty 
of  the  Bishop  to  nominate  at  least  three  Clergymen  for 
the  Rectorship.  If  no  election  be  made  within  three 
months  subsequent  to  such  nomination,  the  Bishop 
may  appoint  a  Rector  who  shall  have  all  the  rights 
and  powers  of  a  Rector  elected  by  the  Vestry."  In 
the  Diocese  of  Springfield  and  a  few  other  Dioceses, 
the  consent  of  the  Bishop  is  made  necessary,  before  a 
Clergyman  elected  to  the  Rectorship  of  a  Parish  can 
become  the  Rector  thereof. 

In  most  of  the  States,  the  Statute  Law  gives  to  the 
Vestry  of  a  Parish  the  power  of  electing  the  Rector 
thereof  whenever  a  vacancy  may  occur. 

Is  this  power  of  election  absolute  and  exclusive  of 
any  and  all  Canon  Law  restricting  or  modifying  that 
power  ?  Has  a  Canon  requiring  the  consent  of  the 
Bishop  as  a  prerequisite  to  the  election  of  a  Clergyman 


1 7o  LA  IV  OF  THE  CHURCH. 

to  the  Rectorship  of  a  Parish  any  legal  force  in  a  State 
where  the  Statute  Law  gives  the  power  of  such  elec- 
tion to  the  Vestry  of  the  Parish  ? 

It  is  a  question  not  wholly  free  from  difficulties. 
The  statement  of  a  few  plain  principles  may  help  us 
somewhat  in  arriving  at  a  correct  conclusion  in  the 
matter.     These  principles,   so  plain  as   to  seem  like 
mere  truisms,  may  be  stated  as  follows: 
First.  The  Church  existed  before  Vestries. 
Second.  The  three  Orders  of  the  Ministry  were  consti- 
tuted before  Vestries  existed. 
Third.  The   Church   and    her  three-fold    Ministry  of 
Bishops,  Priests  and  Deacons  are  Divine  in  their 
origin,  perpetual  in  their  existence,  and  essential 
to  the  Church's  being. 
Fourth.  The  Vestry  is  human  in  its  origin,  without  Di- 
vine   authority   or    obligation,   and    non-essential 
either  to  the  Church's  being  or  to  the  discharge 
of  her  holy  offices. 
Fifth.  It  is  the  Bishop,  not  the  Vestry,  who  has  the 
charge  and  government  over  the  Rector,  to  whose 
godly  judgments  and  admonitions  he  promised  to 
submit,  and  whom  he  promised  reverently  to  obey 
in  the  solemn  moment  of  his  ordination  to  his  holy 
office. 
The  solemn  vows  of  ordination  are  forever  binding 
on  every  duly  ordained  Clergyman,  and  no  Vestry  by 
calling  him  to  be  their  Rector  can  release  him  from 
his  covenant  vows   and   obligations;    by  becoming  a 
Rector  he  does  not  thereby  cease  to  be  a  Priest. 

With  this  statement  of  certain  fundamental  princi- 
ples, whose  truth  cannot  well  be  impugned,  let  us  now 
turn  to  a  direct  consideration  of  the  question  before 


THE   VESTRY.  171 

stated,  viz.:  Is  the  power  given  by  law  to  a  Vestry  to 
call  a  Rector  an  exclusive  power  ? 

When  a  Church  avails  itself  of  an  act  of  incorpora- 
tion, or  other  statute  of  the  civil  power,  it  is  of  course 
bound  to  take  that  law  in  its  true  meaning  and  ex- 
tent, but  no  further.  The  law  creates  the  corporation 
for  an  express  purpose,  that  of  enabling  the  Church 
to  more  effectually  carry  on  and  promote  her  work, 
according  to  her  own  particular  laws  and  principles  ; 
and  the  corporation  so  created  cannot  abrogate  or 
disavow  the  laws  and  usages  of  the  Church,  without 
"  violating  the  very  essential  principle  that  brought  it 
into  being."  The  laws  and  principles  of  the  Church 
must,  of  very  necessity,  form  the  rule  of  conduct  for 
such  corporation,  and  in  conformity  to  that  rule  must 
it  exercise  the  powers  given  to  it  by  the  Statute  Law. 
The  courts  are  well  agreed  on  this  point. — {Watson  v. 
Jones,  13  Wall.,  679;  Chase  v.  Cheney,  58  ///.,  509; 
Pounder  v.  Ashe,  44  Neb.,  672 ;  Christ  Church  v.  Phillips, 
5  Del.  Ch.  Rep.,  429;  Livingston  v.  Rector,  etc.,  45 
N.J.  L.  Rep.,  230;  Prickett  v.  Wells,  117  Mo.,  502.) 

The  question  next  arises  as  to  what  are  the  princi- 
ples of  the  Church  in  this  matter. 

To  the  principles  of  the  Church  of  England  we  must 
look,  if  we  would  fully  and  clearly  understand  the 
principles  of  the  American  Church. 

It  cannot  be  doubted  that  in  the  earliest  ages,  when 
separate  Dioceses  were  first  established,  with  a  Bishop 
in  charge  thereof,  the  power  of  legislation  vested  in 
him.  "  Originally,  the  Bishop,  in  his  Diocese,  was 
clothed  with  the  ultimate  and  exclusive  power  of 
government,  and  that  this  involved  all  judicial  and  all 
legislative  authority,   seems  to   the  author  the   only 


172  LAW  OF  THE  CHURCH. 

doctrine  consistent  with  the  tenet    of  an    Apostolic 
Episcopacy." — {Hoffman  s  "Law  of  the  Church," p.  180.) 

In  England  as  early  as  the  year  740,  it  was  declared, 
"  That  Priests  be  neither  constituted  to  any  Churches, 
nor  ejected  from  them,  without  the  authority  and  con- 
sent of  the  Bishops." — (" Excerptions  of Ecgbrihf'  [23^], 
Johnson 's  Lazvs,  etc.,  Vol.  I.) 

Bishop  Beveridge  well  says :  "  I  confess  myself  ut- 
terly ignorant  why  or  in  what  manner  a  distinction 
should  be  drawn  between  an  Apostolic  and  a  Divine 
right ;  and  since  the  Apostles  transmitted  the  authority 
committed  to  them  by  Christ  to  the  Bishops,  their 
successors,  there  seems  to  us  nothing  more  agreeable 
to  reason,  nothing  more  necessary,  than  that  this  jur- 
isdiction of  Bishops  over  Presbyters  should  be  referred 
to  a  Divine  institution." — {Lib.  II.,  Cap.  1155-18,  Zte 
Episcopis.  Cited  in  Hoffman 's  "  Law  of  the  Church" 
p.  183.) 

In  Bird  v.  Smith  {Moore s  Rep.,  781),  the  Lord  Chan- 
cellor and  the  two  Chief  Justices  of  England,  with  the 
Chief  Baron,  declared :  "  That  at  the  Common  Law, 
every  Bishop  in  his  Diocese,  and  the  Archbishops  in 
Convocations,  could  make  Canons  to  bind  the  clergy 
within  the  limits  of  their  jurisdiction." 

While  this  power  and  authority  of  a  Bishop  has  been 
greatly  modified  and  limited,  either  by  the  consent  of 
the  Bishops  themselves,  or  by  the  enactments  of 
Councils  of  superior  authority  and  to  which  the  Bishops 
were  a  party,  there  can  be  no  question  that  in  the 
Church  of  England,  from  the  beginning  to  the  present 
time,  the  consent  of  the  Bishop  has  been,  and  is,  abso- 
lutely necessary,  before  a  Clergyman  can  be  constituted 
the  Rector  of  a  Parish.     It  is  a  well-known  fact  that 


THE   VESTRY.  173 

in  the  Church  of  England  Vestries  have  little  or  no 
voice  in  the  choice  of  a  Rector.  As  originally  all 
power  and  authority  was  given  to  the  Bishops  and 
by  them  exercised  for  centuries,  that  power  and  au- 
thority vests  in  them  to-day,  except  where  surren- 
dered by  them,  or  taken  from  them  by  legislative 
enactment,  or  by  a  legitimate  conclusion  from  such 
enactment.  Unless  such  evidence  can  be  produced, 
"  we  have,"  as  Judge  Hoffman  says  ("  Law  of  the 
Church," p.  181),  "the  Bishop's  primitive  jurisdiction 
to  resort  to  for  guidance  and  direction — a  power 
without  a  shadow  of  claim  to  infallibility,  but  with 
an  absolute  claim  to  obedience."  It  will  not,  I  think, 
be  contended  by  any  one,  that  the  Church  of  England, 
or  the  Church  in  America,  has  ever  by  any  legislative 
enactment  deprived  the  Bishop  of  a  Diocese  of  his  right 
to  require  that  his  consent  shall  first  be  obtained, 
before  a  Minister  elected  by  the  Vestry  of  a  Parish 
shall  become  the  Rector  thereof. 

It  is  a  principle  of  the  Church  of  England  that  the 
Bishop  is  the  source  of  authority  within  his  Diocese, 
and  therefore  a  principle  of  the  Church  in  America, 
unless  that  principle  has  been  expressly  controverted 
or  denied  by  some  enactment  to  the  contrary. 

But  the  Church,  so  far  from  denying  it,  has  distinctly 
recognized  and  affirmed,  in  the  "  Office  of  Institution," 
as  adopted  and  set  forth  in  her  Book  of  Common 
Prayer,  the  principle  of  the  Mother  Church  as  her  own 
principle,  that  the  Bishop  is  the  source  of  authority 
in  his  Diocese,  and  that  his  permission  is  necessary  be- 
fore a  Rector  of  a  Parish  can  act  as  such  within  it. 

Among  the  strong  words  used  by  the  Bishop  in  this 
"Office  of  Institution  "  are  these :    "We  do  by   these 


174  LA  W  OF  THE  CHURCH. 

presents  give  and  grant  unto  you,  .  .  .  our  License 
and  Authority  to  perform  the  office  of  a  Priest  in  the 
Parish  {or  Church),"  etc.  "And  also  hereby  do  insti- 
tute you  into  said  Parish,  possessed  of  full  power  to 
perform  every  Act  of  sacerdotal  Function  among  the 
People  of  the  same;  you  .  .  .  complying  with  the 
rubrics  and  canons  of  the  Church,  and  with  such  law- 
ful directions  as  you  shall  at  any  time  receive  from 
us."  And  again :  "  We  authorize  you  to  claim  and 
enjoy  all  the  accustomed  temporalities  appertaining  to 
your  cure,"  etc.  In  the  Letter  of  Institution,  the  Rec- 
tor is  charged  by  the  Bishop  to  bear  in  mind  that  he 
is  accountable  to  the  Ecclesiastical  Authority  here, 
"and  to  the  Chief  Bishop  and  Sovereign  Judge  of  all, 
hereafter." 

Truly,  it  is  with  no  uncertain  voice  that  the  Church 
declares  her  adherence  to,  and  affirmation  of,  the 
Catholic  principle  that  the  source  of  Diocesan  author- 
ity is  in  the  Bishop,  and  that  his  consent  is  necessary 
before  a  Clergyman  can  act  as  Rector  of  a  Parish 
within  his  Diocese. 

It  may  be  said  that  while  this  was  the  law  once,  it 
is  not  the  law  to-day,  because  it  is  not  now  uniformly 
enforced  nor  obeyed,  nor  the  use  of  this  particular 
Office  of  Institution  now  obligatory.  That  fact  makes 
not  the  slightest  difference.  A  law  is  a  law,  whether  it 
be  enforced  or  not,  or  whether  it  be  obeyed  or  not, 
and  the  principle  contained  in  that  law  is  no  less  true 
because  the  law  itself  is  not  obeyed  nor  enforced. 

It  is,  therefore,  in  my  judgment,  manifestly  the  Law  of 
the  American  Church  to-day,  first,  that  the  Bishop  is  the 
source  of  authority  within  his  Diocese,  and  second,  that 
the  Bishop's  consent  to  the  election  of  a  Clergyman  to 


THE   VESTRY.  175 

the  Rectorship  of  a  Parish  within  his  Diocese,  be- 
fore such  Clergyman  can  act  as  such  Rector,  is  neces- 
sary. 

It  has  already  been  shown  that  the  courts  have  uni- 
formly held  that  a  religious  corporation  must  exercise 
the  powers  given  to  it  by  the  Statute  Law,  in  con- 
formity with,  and  subservient  to,  the  Ecclesiastical 
laws  and  principles  of  the  Church  with  which  it  is  con- 
nected, and  of  which  it  forms  a  part.  It  is  plain,  there- 
fore, under  these  decisions  of  the  courts,  that  the  power 
of  electing  a  Rector,  given  by  the  Statute  Law  to  a 
Vestry,  is  not  an  exclusive  power,  but  a  power  to  be 
exercised  in  accordance  with,  and  conformity  to,  the 
laws  and  principles  of  the  Church.  If  this  be  true,  and 
it  is  not  easy  to  see  how  it  can  be  successfully  contro- 
verted, then  has  the  Church  the  right  and  the  power  to 
enact  Canons,  making  necessary  the  consent  of  the 
Bishop,  before  a  Clergyman  elected  to  the  Rectorship 
of  a  Parish  can  legally  become  the  Rector  thereof.  As 
a  further  evidence  that  the  power  of  election  by  a 
Vestry  is  not  an  exclusive  power,  it  may  be  stated  as 
an  unquestioned  fact  that  a  Vestry  cannot  elect  any 
person  they  may  choose  to  the  Rectorship  of  a  Parish; 
they  must  elect  a  Minister  of  the  Church,  and  one  who  is 
possessed  of  the  necessary  qualifications,  and  those 
qualifications  are  confessedly  to  be  determined  by  the 
Ecclesiastical  Authority  of  the  Diocese,  according  to 
the  laws  and  principles  of  the  Church.  This  restriction 
on  the  power  of  Vestries  to  elect  a  Rector  is  obviously 
implied  in  the  Statute  Law  granting  them  the  power 
of  election,  and  would  alone  be  sufficient  to  prove 
that  the  power  referred  to  is  not  an  absolute  and 
exclusive  power,  and  also  that  such  power  must  be  exer- 


176  LA  W  OF  THE  CHURCH. 

cised  in  accordance  with,  and  in  conformity  to,  the 
laws  and  principles  of  the  Church.  The  right  of  a 
Rector  to  his  office  is  determined  not  by  the  Civil  Law, 
but  by  the  Canons  and  discipline  of  the  Church,  and  the 
Civil  Law  will  not  shield  him  from  the  consequences 
of  broken  vows,  or  improper  administration,  nor  make 
him  superior  to  the  authority  of  the  Bishop,  or  to  the 
laws  and  discipline  of  the  Church  and  its  tribunals.  If 
he  be  deposed,  or  the  pastoral  tie  be  dissolved  by  the 
Bishop,  his  Rectorship  ceases.  The  pastoral  relation 
is  controlled  by  the  Ecclesiastical  Authority,  and  the  fact 
of  the  dissolution  of  it  by  such  Authority  in  accordance 
with  the  discipline  of  the  Church,  is  conclusive  upon  the 
civil  courts. — (Jennings  v.  Scarborough  et  al.,  56  N.J. 
L.  Rep.,  401;  Livingston  v.  Rector,  45  N.  J.  L.  Rep., 
230;  Walker  v.  Wainwright,  16  Barb.,  486  ;  Shannon 
et  al.  v.  Frost  et  al.,  3  B.  Monr.,  253;  Kuns  v.  Robert- 
son, 154  ///.,  394;  East  Norway  Lake  Church  et  al.  v. 
Halvorson,  42  Minn.,  503;  Stack  v.  OHara,  98  Pa., 
213;  Gaff  et  al.  v.  Greer  et  al.,  88  Lid.,  122;  0' Dono- 
van v.  Chatard,  97  Ind.,  421;  Baxter  v.  McDonnell, 
ISSN.  F.,83.) 

In  Pounder  v.  Ashe  (44  Neb.,  672)  it  was  held  that 
"  the  Church  should  be  free  from  the  interference  of 
the  courts  when  there  is  nothing  drawn  into  question 
but  the  jurisdiction  of  the  Church  over  one  of  its  mem- 
bers, or  ministers,  or  officers."  The  same  principle  was 
held  in  Christ  Church  v.  Phillips  (5  Del.  Ch.  Rep., 
429).  The  Court  declared  that  "  it  possessed  no  power 
to  dictate  Ecclesiastical  Law,  or  to  decide  questions 
arising  thereunder  ;  nor  has  it  the  power  or  the  disposi- 
tion to  invade  the  legitimate  domain  of  the  Church, 
nor  does  it  possess  authority  in  any  manner  to  amend 


THE   VESTRY.  177 

or  abrogate  the  laws  or  canons  thereof.  It  will  not 
attempt  to  administer  its  discipline,  or  to  determine 
Church  relations,  either  of  Bishops,  Ministers,  or  mem- 
bers." 

In  Hennesy  v.  Walsh  (15  Am.  Lata  Reg.,  264)  there 
is  a  note  containing  a  careful  review  of  the  decisions  on 
this  point,  and  the  rule  is  well  laid  down,  as  follows  : 
"  To  this  extent  the  cases  all  agree,  that  it  must  be  the 
unlawful  infringement  of  some  personal  right,  of  pe- 
cuniary value,  and  of  a  character  redressible  in  the 
civil  courts,  in  order  to  justify  their  interference  in 
matters  professedly  of  Ecclesiastical  cognizance." 

In  Chase  et  a/,  v.  Cheney  (58  ///.,  509)  the  Court  held 
that  "  freedom  of  religious  profession  and  worship 
cannot  be  maintained,  if  the  civil  courts  trench  upon 
the  domain  of  the  Church,  construe  its  Canons  and 
rules,  dictate  its  discipline,  and  regulate  its  trials." 

The  larger  portion  of  the  Christian  world  has  always 
recognized  the  truth  of  the  declaration,  "  A  Church 
without  discipline  must  become,  if  not  already,  a 
Church  without  religion."  If  it  be  true,  then,  that  the 
Church  has  authority  and  power  to  enact  laws  for  the 
government  of  her  Clergy  and  for  the  regulation  and 
management  of  her  affairs,  temporal  as  well  as  spiritual, 
and  that  the  Bishop  of  a  Diocese  has  the  power  to 
dissolve  the  relation  of  a  Rector  to  his  Parish,  acting 
in  accordance  with,  and  in  conformity  to,  the  laws  and 
principles  of  the  Church,  it  is  hard  to  see  how  it  can 
well  be  denied  that  the  Bishop  has  also  the  authority 
to  require  that  his  consent  be  first  obtained  before  a 
Minister  of  the  Church  can  assume  the  office  of  Rector 
of  a  Parish  in  his  Diocese,  or  that  the  Church  possesses 
the   power  to   enact  laws,    requiring   the   Vestry  of  a 


178  LA  IV  OF  THE  CHURCH. 

Parish  first  to  obtain  the  consent  of  the  Bishop  of  the 
Diocese  before  receiving  as  Rector  the  Minister  whom 
they  may  have  elected  as  such. 

After  a  careful  review  of  the  long  line  of  decisions 
by  the  courts  on  Ecclesiastical  questions  and  matters, 
I  am  firmly  of  the  opinion  that  the  mere  power  given 
by  the  Statute  Law  to  Vestries  to  elect  a  Rector  is 
not  an  absolute  nor  an  exclusive  power,  but  a  power 
to  be  exercised  subject  to  the  laws  and  principles  of 
the  Church. 

That  the  courts  would  so  hold  is,  in  my  judgment, 
clearly  to  be  implied  from  their  decisions  on  analogous 
questions. 

It  would  be  well,  in  order  to  prevent  any  question  in 
the  matter,  for  the  General  Convention  to  enact  a  Canon 
declaratory  of  this  true  Catholic  principle,  and  requiring 
that  before  the  election  of  a  Rector  by  a  Vestry  shall 
be  complete,  the  written  consent  of  the  Bishop  to  such 
election  must  first  be  procured.  That  the  General 
Convention  has  the  power  to  enact  such  a  Canon,  I 
believe  to  be  beyond  doubt,  and  that  the  courts  would 
recognize  its  validity,  and  decide  it  not  to  be  in  con- 
flict with  Statute  Laws  giving  a  Vestry  power  to  elect 
a  Rector,  is.  in  my  mind,  equally  clear.  This  question 
was  practically  decided  in  the  case  of  The  Rector  et  al. 
of  St.  James'  Church  v.  Huntington  (82  Hun,  125),  in 
which  the  Court  held  that  the  Canon  which  requires 
a  Minister  to  obtain  a  certificate  of  transfer  from  the 
Bishop  of  the  Diocese  before  he  can  officiate  as  Rector 
of  a  Parish  in  such  Diocese,  and  the  Canon  authorizing 
the  Bishop  to  inhibit  a  Minister  from  so  officiating 
without  such  certificate  of  transfer,  were  not  in  conflict 
with    the    Statute    giving   Wardens  and    Vestrymen 


THE   VESTRY.  l79 

power  to  elect  and  call  a  Rector,  etc.,  and  that  such 
power  of  election  and  calling  was  not  absolute. — (See 
also  People  ex  rel.  Peck  v.  Conley  et  al.,  42  Hun,  98.) 

The  election  of  a  Rector  being  the  most  important 
act  within  the  province  of  a  Vestry  or  Parish,  it  should 
be  made  by  a  written  resolution  explicitly  stating  the 
amount  of  his  stipend,  and  when  it  shall  be  payable. 
In  most  of  the  Dioceses  a  majority  of  votes  is  sufficient 
to  elect.  In  a  few  States,  as  in  New  Jersey,  the  law 
requires  a  two-thirds  vote  to  elect.  The  Secretary  or 
Clerk  of  the  Vestry  should  be  authorized  to  transmit 
a  copy  of  the  resolution  to  the  Rector-elect.  This 
resolution  is  the  call,  and,  if  accepted,  becomes  a  legal 
contract,  and  the  salary  accruing  under  it  is  a  debt  re- 
coverable in  law.  While  the  Vestry  have  power  to 
elect  a  Rector,  they  have  no  power  to  remove  him  ; 
the  contract  is  for  life  and  is  determinable  only  by 
mutual  consent,  or  by  the  lawful  authority,  duly  exer- 
cised, of  the  Bishop  of  the  Diocese. — {Sheldon  v.  Par- 
ish, etc.,  41  Mass.,  281  ;  Youngs  v.  Ransom,  31  Barb. 
Rep.,  49.) 

Nor  can  the  Vestry  indirectly  remove  him  by  a  re- 
duction of  his  salary.  The  right  to  the  salary  stipu- 
lated in  the  call  is  a  valuable  property  right  secured  to 
the  Rector  by  contract. — {Bird  v.  St.  Mark's  Church, 
etc.,  62  Iowa,  567;  Worrel  v.  First  Pres.  Church,  8  C.  E. 
Green,  96.) 

ORGANIST  AND   CHOIR. 

The  English  Ecclesiastical  Law  gives  to  the  Rector, 
with  the  consent  of  the  Ordinary,  the  employment  of 
the  organist  and  members  of  the  choir ;  but  if  any  ex- 
pense is  incurred,  there  must  be  a  rate  levied  at  a  Ves- 


i  So  LA  W  OF  THE  CHURCH. 

try  meeting  of  the  parishioners.  The  control  of  the 
organist  is  with  the  Minister. — {Burn's  "  Ecc.  Law" 
Vol.  I.,  374,  a,  b\  Dales  "  Clergyman 's  Legal  Hand- 
book? 92.) 

It  is  also  the  Law  of  the  America  n  Church.  The  pres- 
ent Canon  {Canon  45  of  the  Digest)  is  obviously  a 
direct  incorporation  of  the  principles  of  the  English 
Ecclesiastical  Law  on  the  subject,  and  gives  the  exclu- 
sive control  of  the  music  of  the  Church  and  the  employ- 
ment of  the  organist  and  members  of  the  choir,  to  the 
Rector. 

Its  language  is  plain  and  explicit  regarding  the 
Rector's  right  of  employment:  "  It  shall  be  the  duty 
of  every  Minister,  .  .  .  with  such  assistance  as  he 
may  see  fit  to  employ  from  persons  skilled  in  music," 
etc.  This  Canon  was  first  enacted  by  the  General 
Convention  in  1874,  not  for  the  purpose  of  imparting 
authority  to  the  Clergy,  but  to  make  it  mandatory  upon 
them  to  use  their  prerogative.  It  directs  that  the  Min- 
ister, not  the  Vestry,  shall  "give  order"  concerning 
the  music  of  the  Church,  and  if  he  sees  fit,  he — not  the 
Vestry — may  employ  persons  "  skilled  in  music." 

The  only  fair  interpretation  of  the  Canon  certainly 
gives  to  the  Rector  the  power  to  employ  or  appoint  the 
organist  and  members  of  the  choir.  But  even  if  it  be 
argued  that  the  language  of  the  Canon  is  not  clear  on 
this  point,  and  therefore  capable  of  a  different  inter- 
pretation, it  will  not  support  the  contention  that  the 
Vestry  has  the  power  of  employing  or  appointing  the 
organist  and  members  of  the  choir.  For,  in  the  ab- 
sence of  any  Canon  of  the  American  Church  on  a  ques- 
tion relating  to  the  discipline  of  the  Church,  the  Eng- 
lish Ecclesiastical  Law  governs,  and  that  Law,  as  has 


THE  VESTRY.  181 

been  shown,  explicitly  gives  the  employment  of  an  or- 
ganist and  members  of  the  choir  to  the  Rector. 

But  should  it  be  contended  that  the  Church  has  a 
Canon  on  the  question,  only  the  Canon  is  indetermi- 
nate, it  may  be  said  in  reply,  that  the  courts  have  uni- 
formly acted  upon  the  principle,  and  in  many  cases 
have  expressly  so  decided,  that  when  the  American 
Canon  Law  is  indeterminate  on  any  question  arising 
between  a  Rector  and  his  Vestry  relative  to  their  re- 
spective rights,  then  the  English  Ecclesiastical  Law 
must  be  resorted  to  for  the  correct  interpretation  of 
such  Canon,  and  the  determining  of  what  is  the  Ec- 
clesiastical Law  governing  the  Church. 

Interpreted  in  the  light  of  the  English  Ecclesiastical 
Law,  the  Canon  would  clearly  give  the  right  of  the 
employment  in  question  to  the  Rector. 

Again,  it  is  a  well-settled  principle  of  law  that  when 
a  statute  (and  a  Canon  is  an  Ecclesiastical  Statute) 
can  be  construed  either  in  harmony  or  in  conflict  with 
the  purpose  for  which  the  statute  was  enacted,  only 
that  construction  will  be  sustained  which  harmonizes 
with  and  upholds  the  purpose  sought  to  be  obtained  by 
its  enactment.  Under  this  principle,  the  courts  would 
unquestionably  construe  the  words  of  the  Canon,  "  It 
shall  be  the  duty  of  every  Minister,  .  .  .  with 
such  assistance  as  he  may  see  fit  to  employ  from  persons 
skilled  in  music,to  give  order,"  etc.,  as  giving  to  the  Rec- 
tor, and  not  the  Vestry,  the  power  to  employ  and  ap- 
point the  organist  and  members  of  the  choir.  While  the 
personnel  and  direction  of  the  choir  belong  exclusively  to 
the  Rector,  the  terms  of  employment  and  the  salaries 
of  the  organist  and  members  of  the  choir  belong  to  the 
Vestry,  collectively,  to  determine,  as  they  only  have 


182  LA  W  OF  THE  CHURCH. 

the  power  to  make  such  contracts  as  will  affect  the 
revenues  or  property  of  the  Church. 

In  a  word,  the  Vestry  may  contract  for  religious 
services  only  with  such  persons  as  the  Rector  may 
select. 

Judge  Hoffman  ("  Ecc.  Law  of  New  York,"  p.  88,) 
relates  a  case  coming  within  his  own  knowledge,  in 
which  the  question  of  their  relative  rights  in  this  mat- 
ter was  discussed  by  a  Rector  and  the  other  members 
of  the  Vestry,  and  wherein  "  an  adjustment  was  made, 
by  which  the  period  of  employment,  the  number  of 
persons  to  be  employed,  and  the  salaries,  were  deter- 
mined at  a  Vestry  meeting,  and  the  selection  of  per- 
sons and  other  regulations  was  left  to  the  Rector."  In 
commenting  on  this  adjustment,  he  says  :  "  This  is  the 
actual,  legal,  and  canonical  position  ;  this,  certainly,  is 
the  most  expedient  and  Ecclesiastical." 

In  the  author's  opinion,  an  even  more  canonical  and 
Ecclesiastical  way,  one  that  would  give  less  occasion 
for  friction  between  a  Rector  and  the  other  members 
of  the  Vestry,  would  be  for  the  Vestry  to  make  an  an- 
nual appropriation  for  the  music  of  the  Church,  leaving 
the  manner  of  its  expenditure  and  other  matters  con- 
nected therewith  to  the  Rector. 

This  question  of  the  relative  power  of  the  Rector 
and  the  Vestry  over  the  music  of  the  Church  will  be 
further  discussed  in  the  consideration  of  the  Rights 
and  Duties  of  a  Rector. 

rector's  consent  necessary  to  the  alienation 
of  property. 

The  Rector,  virtute  officii,  is  not  only  one  of  the 
three  integral  parts  of  a  Vestry,  he  is  also  the  head  of 


THE   VESTRY.  1 83 

the  corporation.  Under  the  English  Ecclesiastical 
Law,  the  possession  of  the  churchyard,  as  well  as  the 
church,  is  in  the  incumbent. — {Greenslade  v.  Darby, 
L.  R.  3  Q.B.  4.21;  Stocks  v.  Booth,  1  D.&  E.  Rep.  428; 
Burns  uEcc.  Law','1  Vol.  L,  /.  377;  Crlpp's  "  Church 
and  Clergy," p.  433.) 

These  cases  were  cited  and  approved  by  the  Supreme 
Court  of  New  Jersey  in  Lyndv.  Menzies  (33  N.J.  L. 
Rep  ,  162).  In  this  case  the  Court  decided  that  the 
Rector  was  possessed  of  the  church  buildings  and 
grounds,  and  had  the  right  to  a  civil  remedy  if  such 
possession  was  invaded. 

Judge  Hoffman  ("  Law  of  the  Church"  p.  254)  says  : 
"  By  the  Common  Law,  the  fee  of  the  glebe  and  lands 
of  the  Church,  vested  in  the  incumbent,  and  of  course 
his  union  in  any  alienation  was  indispensable."  Judge 
Story,  in  delivering  the  opinion  of  the  Supreme  Court 
of  the  United  States,  in  the  case  of  Terrett  et  al.  v. 
Taylor  et  al.  (9  Crunch,  43),  thus  states  the  law:  "At 
a  very  early  period,  the  religious  establishment  of 
England  seems  to  have  been  adopted  in  the  Colony 
of  Virginia,  and  of  course  the  Common  Law  upon  that 
subject  so  far  as  it  is  applicable  to  the  circumstances 
of  that  Colony."  "  The  Minister  of  the  Parish  was,  dur- 
ing his  incumbency,  seized  of  the  freehold,  in  law  or  in 
equity,  jure  ecclesice,  and  during  a  vacancy  the  fee 
remained  in  abeyance.'1  "As  incident  to  their  [Vestry- 
men's] office  as  general  guardians  of  the  Church,  we 
think  they  must  be  deemed  entitled  to  assert  the 
rights  and  interest  of  the  Church.  But  the  Minister 
also,  having  the  freehold,  either  in  law  or  in  equity, 
during  his  incumbency,  in  the  lands  of  the  Church,  is 
entitled  to  assert  his   own  rights  as  persona  ecclesice. 


184  LA  W  OF  THE  CHURCH. 

No  alienation,  therefore,  of  the  Church  lands  can  be 
made,  either  by  himself,  or  by  the  parishioners,  or 
their  authorized  agents,  without  the  mutual  consent  of 
both.  And,  therefore,  we  should  be  of  opinion  that 
upon  principle  no  sale  ought  to  be  absolutely  decreed, 
unless  with  the  consent  of  the  parson,  if  the  Church  be 
full."  In  the  same  case  Judge  Story  again  says :  "  It 
appears  to  us  that  in  case  of  a  plenarty  of  the  Church, 
no  alienation  or  sale  of  the  Church  lands  ought  to  take 
place  without  the  assent  of  the  Minister,  unless  such 
assent  be  expressly  dispensed  with  by  some  Statute." 

The  rule  of  the  Common  Law  thus  stated  by  Judge 
Story  is  undoubtedly  the  rule  in  this  country,  that  the 
Rector  of  a  Church  has  such  interest  in,  and  posses- 
sion of  the  real  property  of  the  Church,  that  no  sale  or 
mortgage  of  such  property  can  be  made  by  the  Vestry 
without  his  assent  thereto,  unless  such  assent  has 
been  expressly  dispensed  with  by  some  Statute. 

This  principle  has  been  recognized  by  the  courts  of 
many  of  the  States. 

In  nearly  all  the  States  the  law  provides  that,  if  the 
Church  be  without  a  Rector,  then  the  same  rights  and 
privileges  granted  to  the  Rector,  Wardens  and  Vestry- 
men shall  be  vested  in  the  Wardens  and  Vestrymen. 
This,  I  apprehend,  applies  only  to  the  title  and  the 
holding  and  custody  of  the  Church  property,  and  not 
to  the  alienation  thereof.  It  is  from  the  Bishop 
that  the  Rector  receives  his  power  to  exercise  his 
rectorial  office  in  a  Parish,  and  on  the  termination 
of  that  rectorship,  the  power  returns  to  the  Bishop. 
The  Office  of  Institution  affirms  the  Church's  claim 
that  the  Bishop  is  the  source  of  authority  within  his 
Diocese,  and  that  his  permission  is  necessary  before  a 


THE  VESTRY.  185 

Rector  can  act  as  such  in  any  Parish  within  the  limits 
of  that  Diocese. 

In  that  Office,  the  Bishop  uses  these  strong  words : 
"  We  authorize  you  to  claim  and  enjoy  all  the  accus- 
tomed temporalities  appertaining  to  your  cure,"  etc. 

As  we  shall  have  occasion  to  consider  more  care- 
fully the  Office  of  Institution  when  we  come  to  treat 
of  the  rights  and  duties  of  a  Rector,  a  further  consid- 
eration of  that  Office  at  this  time  is  therefore  unne- 
cessary. 

In  the  Church,  power  does  not  ascend  from  the  con- 
gregation or  the  Vestry  to  the  Rector;  it  descends 
from  above  to  the  Bishops,  and  through  the  Bishop  to 
the  subordinate  ministry  {Blunts  "  Book  of  Church 
Law"  p.  227,  et  seq.\  Hoffman  su  Law  of  the  Church"  p. 
468,  et  scq.).  It  is  a  principle  of  Ecclesiastical  Law 
that,  in  case  of  a  vacancy  in  the  Rectorship  of  a  Parish, 
the  Bishop  of  the  Diocese  is,  ex-officio,  Rector  of  the 
Parish. — (Blunfs  "  Book  of  Church  Law"  pp.  321,  322.) 

While  the  question  has  not  been  adjudicated  upon 
by  the  courts  in  this  country,  so  far  as  I  have  been 
able  to  find,  I  cannot  but  believe  that  if  it  came 
before  them,  the  courts  would  sustain  the  conten- 
tion that  the  consent  of  the  Bishop  was  necessary  to 
the  alienation  of  the  real  property  of  the  Church,  in 
case  there  was  no  Rector  thereof,  and  in  the  absence 
of  any  law  explicitly  empowering  the  Wardens  and 
Vestrymen  of  the  Church  so  to  act  in  case  of  a  vacancy 
in  the  Rectorship. 

In  Maryland  the  twenty-ninth  section  of  the  Vestry 
Act  provides  that  no  Vestry  shall  sell,  alien  or  transfer 
any  of  the  property  of  the  Church  in  case  there  be  no 
Rector,   without  the   consent   of   the   Bishop.     Some 


186  LA  W  OF  THE  CHURCH. 

similar  restriction,  which  is  demanded  by  every  prin- 
ciple of  jurisdiction,  ought  to  be  incorporated  into  the 
laws  of  every  State  in  order  to  remove  all  questions  of 
doubt  in  the  matter. 

VACANCIES   IN   A   VESTRY. 

Vacancies  in  a  Vestry  may  be  caused  by  the  death 
of  a  Warden  or  Vestryman,  a  removal  from  the  place, 
cum  animo  manendi,  or  by  a  written  resignation  of 
his  office.  But  a  resignation  must  be  accepted  by  the 
Vestry  before  it  can  take  effect  and  create  a  vacancy. 
A  Warden  or  Vestryman  cannot  resign  his  office 
without  the  consent  of  the  Vestry. — {Connitt  et  al.  v. 
Dutch  Church,  etc.,  4  Latising,  339;  affirmed  54  N.  Y. 
Rep.  551;  Doremus  v.  Dutch  Ch.,  2  Gr.  Chan.  {N.J.)  332.) 

The  manner  of  filling  vacancies  in  the  Vestry,  occas- 
ioned by  death,  resignation  or  otherwise,  is  regulated 
by  the  Statute  Law  of  the  State,  or  the  Canon  Law  of 
the  Diocese. 

In  Minnesota  and  a  few  other  States  the  law  pro- 
vides that  all  vacancies  must  be  filled  by  a  special 
meeting  of  the  Parish,  duly  called.  The  law  is  not  im- 
perative that  a  special  Parish  meeting  must  be  called 
to  fill  a  vacancy  whenever  occurring,  only  that  if  it  be 
deemed  advisable  to  fill  such  vacancy,  then  must  a 
special  Parish  meeting  be  called  so  to  fill  it.  The  law, 
in  most  cases,  merely  provides  how  it  is  to  be  filled, 
not  that  it  must  be  filled. 

Such  special  meeting  must  be  duly  called,  and  in  the 
same  manner  as  an  annual  meeting  is  called,  unless  the 
law  contains  some  provision  to  the  contrary.  The 
notice  should  explicitly  state  the  purpose  for  which  the 
meeting  is  called.    This  meeting  is  subject  to  the  same 


THE   VESTRY.  ilj 

rules  as  to  the  manner  of  conducting  it,  and  the  quali- 
fications of  voters,  as  govern  the  annual  meetings. 

In  the  majority  of  the  States  and  Dioceses  the  law- 
gives  to  the  Vestry  the  power  to  fill  all  vacancies  in  its 
own  body,  provided,  of  course,  the  remaining  mem- 
bers constitute  a  majority  of  the  Vestry.  Should  there 
remain  a  less  number  of  Vestrymen  than  was  neces- 
sary to  make  a  quorum,  no  legal  meeting  of  the  Vestry 
could  be  had  to  fill  the  vacancies. 

In  some  Dioceses  provision  is  made  that,  in  such 
cases,  the  Bishop  of  the  Diocese  may  call  a  special 
meeting  of  the  Parish,  to  elect  a  Vestry  to  serve  until 
the  next  annual  election.  Where  no  provision  is 
made  by  Statute  or  Canon  for  such  cases,  the  Rector 
would  probably  have  the  right  to  call  a  special  Parish 
meeting  to  fill  such  vacancies,  and  a  meeting  so 
called,  and  duly  conducted,  would  undoubtedly  be  held 
to  be  a  legal  meeting,  with  power  to  act  in  the  matter. 

CHANGE   IN   NUMBER   OF  VESTRYMEN. 

With  few  exceptions,  the  Law,  Statute,or  Canon,  in  the 
different  States  or  Dioceses  fixes  the  minimum  and 
maximum  number  of  Vestrymen  which  a  Parish  may 
elect. 

Should  a  Parish  desire  for  any  reason  to  increase  or 
decrease  the  number  of  its  Vestrymen,  it  may  do  so, 
provided  the  number  be  not  increased  or  decreased  be- 
yond the  maximum  or  minimum  limit  fixed  by  law. 
When  not  otherwise  provided  for  by  law,  the  mode  of 
procedure  should  be  as  follows  : 

The  Vestry,  at  a  regular  meeting  thereof,  may  adopt 
a  resolution  to  change  the  number  of  Vestrymen  to 
any  certain    number  within  the  limits    fixed   by  law. 


1 88  LA  W  OF  THE  CHURCH. 

This  resolution,  or  the  substance  thereof  at  least,  must 
be  incorporated  in  the  notice  of  the  next  annual  Parish 
meeting  ;  the  notice  must  also  further  state  that  such 
resolution  will  be  submitted  to  the  voters  of  the 
Parish  at  such  meeting  for  their  adoption  or  rejection. 
If  the  resolution  be  adopted  by  a  majority  of  the  legal 
voters  at  such  annual  meeting,  a  certificate  must  be 
made  setting  forth  the  resolution  in  full,  that  it  was 
adopted  at  a  regular  meeting  of  the  Vestry,  a  majority 
being  present  and  voting  therefor,  that  notice  was  duly- 
given  at  the  time  of  the  annual  meeting  of  the  Parish, 
that  said  resolution  would,  at  that  time,  be  submitted 
to  the  qualified  voters  thereof  for  their  approval  or  re- 
jection, and  that  at  the  meeting  held  in  pursuance  of 
such  notice,  the  said  resolution  was  adopted  by  a  ma- 
jority of  the  qualified  voters  present. 

As  this  certificate  is  an  amendment  of  the  original 
certificate  of  incorporation,  it  must  be  signed  and  ac- 
knowledged in  the  same  manner  as  required  for  the 
original  certificate. 

This  certificate  must  be  filed  with  the  same  officer 
with  whom  the  law  directs  the  original  certificate  to  be 
filed.  The  proposed  change  in  the  number  of  Vestry- 
men is  effected  upon  the  filing  of  the  certificate.  In 
those  States  where  the  law  does  not  require  the  original 
certificate  to  be  filed,  the  certificate  of  amendment 
need  not,  of  course,  be  filed.  In  Kentucky  the  law- 
provides  that  the  Vestry  may,  by  a  two-thirds  vote, 
amend  the  Charter,  by  filing  and  recording  the 
amendment,  in  the  same  manner  as  provided  for  the 
original  Charter  or  Certificate  of  Incorporation. 

In  those  States  where  the  original  Charter  is 
granted   by   the    court,    the    law    provides    that    the 


THE   VESTRY.  189 

Charter  may  be  amended  by  the  court.  In  such 
States  a  petition  should  be  presented  by  the  Vestry 
to  the  court,  praying-  for  an  order  to  amend  the  Char- 
ter as  desired.  This  order,  when  made  by  the  court, 
must  then  be  filed  as  the  law  directs,  and  when  so 
filed  the  amendment  becomes  effective. 


CHAPTER  IV. 

OF  VESTRY    MEETINGS. 

THE  law  of  the  English  Church  provides  that 
Vestry  meetings  must  be  called  by  the  Rector, 
or  by  the  Church  Wardens  with  his  consent. 
— {Dales  "Clergyman's  Legal  Hand- Book"  pp.  107,  108. 
Queen  v.  DOyly,  4  Perry  and  Davidson  s  Rep.,  52.) 

In  the  American  Church  the  calling  of  Vestry  meet- 
ings is,  in  nearly  every  case,  regulated  by  Statute  or 
Canon  Law,  which  recognizes  the  right  of  the  Rector 
to  call  meetings  of  the  Vestry  at  such  times  as  he  may 
deem  expedient. 

In  a  few  States  the  Wardens,  or  a  certain  number 
of  the  Vestrymen,  are  given  like  power  with  the  Rec- 
tor to  call  meetings  of  the  Vestry.  In  the  State  of 
Michigan  the  Rector  may  call  a  Vestry  meeting,  by 
giving  due  notice  thereof  on  the  preceding  Sunday,  or 
a  Vestry  meeting  may  be  called  by  a  notice  in  writing 
signed  by  the  Rector,  either  Warden,  or  any  two  Ves- 
trymen, served  upon  each  member. 

In  many  of  the  States  and  Dioceses  the  law  pro- 
vides that  the  Rector  shall  call  a  Vestry  meeting  at 
the  request  of  the  Wardens,  or  of  a  certain  number  of 
the  Vestrymen. 

In  the  Virginia  Dioceses  and  a  few  others,  the  law 
also  provides  that  in  case  the  Rector  fail  to  call  a 
Vestry  meeting  when  so  requested  by  a  certain  num- 
ber of  Vestrymen,  such  Vestrymen,  if  they  deem  it 
necessary,  may  themselves  call  a  meeting.     In  case  of 


VES  TR  Y  MEE  TINGS.  191 

a  vacancy  in  the  Rectorship,  the  law  usually  provides 
that  the  Wardens  may  call  meetings  of  the  Vestry. 
In  the  absence  of  any  law  giving  Wardens  or  Vestry- 
men the  power  to  call  a  Vestry  meeting,  the  Rector 
alone,  if  there  be  a  Rector,  has  such  power.  But  a  per- 
emptory writ  of  mandamus  will  lie  to  compel  a  Rector 
to  call  a  Vestry  meeting  for  the  purpose  of  issuing  a 
call  for  a  special  Parish  meeting  to  fill  vacancies  in  a 
Vestry,  where  the  law  provides  that  "the  Vestry  shall 
order  a  special  election  to  fill  such  vacancies." — {St. 
Stephen's  Church  Cases,  25  Abb.  N.  C,  230.) 

But  such  a  writ  will  not  lie  to  compel  a  Rector  to 
call  a  Vestry  meeting,  when  the  calling  thereof  lies 
wholly  within  his  discretion. 

A  writ  of  mandamus  will  not  lie  to  control  discre- 
tion.— {Fowler  v.  Pierce,  2  Cat.,  165;  Berry  man  v.  Per- 
kins, 55  Cal.,  483;  Union  Colony  v.  Elliott,  5  Col.,  371; 
Ex  parte  School  Directors,  etc.,  5  Clark  [Pa.~\,  400.) 

NOTICE. 

The  English  Ecclesiastical  Law  requires  "  three  days 
to  intervene  between  the  Sunday  and  the  day  of  meet- 
ing."— {Dale's  "Clergyman's  Legal  Handbook,"  p.  108; 
Cripp's  "Law  of  the  Clergy"  6th  Ed.,  p.  682;  Reg.  v. 
Best,  16  L.J. ,  M.  C,  102.) 

Three  days'  notice  of  a  Vestry  meeting  is  required 
by  the  Statute  or  Canon  in  the  majority  of  the  Dio- 
ceses. In  the  absence  of  any  Statute  or  Canon  on  the 
question,  a  three  days'  notice  would  be  in  compliance 
with  the  English  Law,  and  would  undoubtedly  be  held 
to  be  sufficient. 

The  manner  in  which  the  notice  must  be  given  is 
regulated  in  most  cases  either  by  the  Statute  or  Canon 


19*  LA  W  OF  THE  CHURCH. 

Law,  or  by  the  by-laws  of  the  Parish.  Unless  other- 
wise provided  by  law,  the  meeting  must  be  called 
under  the  hand  of  the  Rector,  or  by  a  personal  notice 
given  by  him  to  each  member.  A  notice  given  by  the 
Rector  in  time  of  Divine  Service  would  be  sufficient, 
provided  all  the  members  were  present  at  the  service 
when  the  notice  was  given,  or  a  personal  or  written 
notice  given  to  those  members  who  were  not  so  pres- 
ent. It  would,  no  doubt,  be  a  sufficient  compliance 
with  the  law  requiring  the  notice  to  be  given  under 
the  hand  of  the  Rector,  if  the  Rector,  in  writing,  should 
authorize  the  Secretary  or  Clerk  of  the  Vestry  to  call 
a  meeting  thereof. 

In  the  Diocese  of  Kansas  City  the  Canon  requires 
that  "notice  of  all  meetings  of  the  Vestry  shall  be  given 
by  the  Secretary,  in  writing,  or  publicly  by  the  person 
officiating  at  some  service  preceding  the  meeting." 

In  New  Hampshire  the  Canon  provides  that  "  no 
meeting  of  the  Vestry  shall  be  had  unless  at  least 
three  days'  notice  has  been  given  by  the  Clerk,  at  the 
request  of  the  Rector  or  one  of  the  Church  Wardens." 

The  notice  may  be  sent  by  mail,  and  the  law  will 
presume  the  receipt  thereof  by  the  person  to  whom  it 
was  properly  addressed. — {Oregon  S.  S.  Co.  v.  Otis,  ioo 
N.  Y.,  446.) 

But  should  the  person  to  whom  the  notice  was  sent 
not  receive  it,  the  meeting  would  not  be  legal  unless 
he  be  present. 

A  few  Dioceses,  as  Alabama  and  Nebraska,  provide 
for  quarterly  meetings  of  the  Vestry.  A  Vestry  may 
also,  by  by-law  or  resolution,  determine  upon  stated 
days  for  regular  meetings  of  the  Vestry.  Of  such 
meetings  the  members  of  the  Vestry  are  chargeable 


VESTRY  MEE TINGS.  193 

with  notice. — (Smith  v.  Lazv,  21  N.  Y.  R.t  296;  Will- 
cock  on  Corp.,  Part  I.,  sec.  iv.,  clause  59.) 

If,  however,  any  business  of  moment  is  contemplated 
at  such  meeting,  it  would  be  advisable  to  give  notice 
thereof,  in  order  to  prevent  any  question  as  to  the  legal- 
ity of  the  meeting.  A  Vestry  meeting  would  be  legal, 
even  though  no  notice  thereof  was  given,  provided 
every  member  of  the  Vestry  be  present,  and  proceed 
without  objection  to  the  transaction  of  business.  The 
object  of  the  notice  being  simply  to  apprise  the  mem- 
bers of  the  Vestry  of  the  meeting  in  order  that  they 
may  attend  and  exercise  their  rights,  its  necessity  is 
waived  if  they  be  present. — (People  v.  Peck,  11  Wen- 
dell, 604.) 

Also,  if  some  of  the  Vestry  be  notified,  and  others 
not,  a  legal  meeting  may  be  had,  provided  every  mem- 
ber who  was  not  notified  is  present.  But  no  legal 
meeting  of  a  Vestry  can  be  had,  if  any  member  thereof 
who  was  not  duly  notified,  be  absent. 

QUORUM. 

In  a  few  of  the  States  and  Dioceses,  the  quorum  at 
a  Vestry  meeting  is  regulated  by  the  Statute  or  Canon 
Law.  In  New  Hampshire  it  is  required  that  the  Rec- 
tor or  one  Warden,  and  a  majority  of  the  Vestrymen 
must  be  present  to  constitute  a  quorum. 

In  the  Dioceses  of  Chicago  and  Springfield  the 
Canons  provide  that  no  meeting  of  a  Vestry  shall  be 
held  to  be  valid  in  which  there  shall  not  be  present 
either  the  Rector  or  one  Warden. 

In  Michigan  the  Statute  Law  provides  that  "  a  ma- 
jority  of  the   Vestrymen    elected   shall  constitute  a 


i94  LA  W  OF  THE  CHURCH. 

quorum  for  the  transaction  of  business."  The  New 
York  Statute  provides  that  in  order  "  to  constitute  a 
quorum  of  the  Vestry  there  must  be  present  either : 

"  i.  The  Rector,  at  least  one  of  the  Church  Wardens, 
and  a  majority  of  the  Vestrymen,  or 

"  2.  The  Rector,  both  Church  Wardens  and  one  less 
than  a  majority  of  the  Vestrymen,  or 

"  3.  If  the  Rector  be  absent  from  the  Diocese  and 
shall  have  been  so  absent  for  over  four  calendar  months, 
or  if  the  meetings  be  called  by  the  Rector,  and  he  be 
absent  therefrom,  or  be  incapable  of  acting,  one  Church 
Warden  and  a  majority  of  the  Vestrymen,  or  both 
Church  Wardens  and  one  less  than  a  majority  of  the 
Vestrymen." 

This  Statute  is  based  on  the  true  principles  of  Eccles- 
iastical Law,  that  in  order  to  constitute  a  legal  Vestry 
meeting  there  must  be  present  the  Rector  (if  there  be 
one),  a  Warden,  and  a  majority  of  the  Vestrymen. 
"  There  are  thus  three  integral  parts  of  the  body,  which 
personally,  as  in  the  case  of  the  Rector,  or  by  repre- 
sentation, as  in  the  cases  of  the  Wardens  and  Vestry- 
men, must  attend." — {Hoffman  s  "  Ecc.  Law,"  p.  71; 
Humplireys  "  Law  of  the  Church"  p.  41.) 

It  is  a  well-established  principle  not  only  of  English, 
but  of  American  Law,  that  where  a  corporation  consists 
of  two  or  more  definite,  integral  parts,  there  must  be 
a  majority  of  each  integral  part  present,  in  order  to 
constitute  a  corporate  assembly  of  the  whole,  and  with- 
out any  one  of  which  the  corporation  would  not  be 
complete,  although  none  of  them  are  by  themselves  a 
corporation. — (Rex  v.  Belhinger,  4  Durn.  &  East.  Rep., 
810;  Rex  v.  Miller,  6  Durn.  &  East.  Rep.,  268;  Rex  v. 
Thornton,  4  East.,  294;  Rex  v.  Buller,  8  East.,  389;  Rex 


VESTRY  MEE  TINGS.  195 

v.  Morris,  4  East.,  17;  Angel  &  Anus  on  Corp.,  \\tk 
Ed.,  sec.  97;  3  Thompson,  Corp.,  stc.  3916.) 

In  Waterman's  " Law  of  Corporations"  (  Vol.  I.,  sec.  6%, 
p.  222),  the  law  is  thus  stated  :  "  It  has  been  held,  when 
the  corporation  is  composed  of  several  distinct  parts  or 
classes  of  persons,  every  integral  part  must  be  repre- 
sented at  a  corporate  meeting  by  a  majority  at  least  of 
its  proper  members,  although  the  major  part  of  all 
present  when  assembled  are  competent  to  do  a  cor- 
porate act." 

In  University  of  Md.  v.  Williams  (9  Gill&f.,  365),  it 
was  held  that  a  corporation  cannot  be  considered  as 
composed  of  distinct,  definite,  integral  parts,  unless  the 
number  of  the  members  of  each  class  is  definite ;  but 
when  it  is  so  composed,  a  majority  of  the  members  of 
each  class  is  necessary  to  constitute  a  corporate  meet- 
ing or  assembly. 

In  the  case  of  St.  Mary's  Church  (J  Serg.  &  R.,  517), 
the  trustees  of  which  consisted  of  three  clerical  and 
eight  lay  members,  the  Court  held  that  "  every  integral 
part  must  be  present  at  a  corporate  assembly,  by  a 
majority  at  least  of  its  proper  members ;  though  the 
major  part  of  all  present  when  assembled  are  compe- 
tent to  do  a  corporate  act."  This  case  was  cited  and 
approved  in  Craig  v.  First  Fres.  Church,  etc.,  (88  Fa. 
St.  Rep.,  42),  the  opinion  of  the  Court  being:  "When  a 
corporation  is  composed  of  several  integral  parts,  and 
each  part  consists  of  a  definite  number,  a  majority  of 
each  part  must  be  present  to  constitute  a  quorum." — 
(See  also  Ex  parte  Rogers,  7  Cow.  \_N.  Y.~],  526  note; 
Whiteside  v.  People,  26  Wend.,  634.) 

The  rule  laid  down  by  the  Court  in  the  case  of  St. 
Mary's  Church,  above  cited,  applies  to  and  governs  the 


I96  LA  W  OF  THE  CHURCH. 

meetings  of  Vestries,  unless  otherwise  provided  for  by 
law.  A  Vestry  is  a  corporation  composed  of  three 
distinct,  definite,  integral  parts,  each  necessary  to  make 
the  corporation  complete,  although  none  of  the  parts 
are  by  themselves  a  corporation.  The  title  of  the  cor- 
poration, and  the  form  of  citing  it,  "  the  Rector,  War- 
dens and  Vestrymen,"  plainly  evidence  the  three  inte- 
gral parts  thereof,  the  Rector,  the  Wardens,  and  the 
Vestrymen.  Each  part  is  composed  of  a  definite 
number;  no  one  part  is  a  corporation  by  itself;  and 
each  part  is  necessary,  when  there  is  a  plenarty  in  the 
Vestry,  to  complete  the  corporation.  Under  the  well 
settled  rule  of  law  governing  corporations  composed 
of  several  definite,  integral  parts,  to  constitute  a  legal 
meeting  of  the  Vestry  in  those  States  where  the  law 
does  not  provide  otherwise,  there  must  be  present  the 
Rector,  when  there  is  one,  one  Warden,  and  a  majority 
of  the  Vestrymen.  That  the  courts  would  so  hold  if 
the  question  came  before  them,  is  a  conclusion  amply 
warranted,  in  the  author's  opinion,  by  their  decisions 
in  analogous  cases. 

The  presence  of  the  Rector  to  constitute  a  legal 
meeting  of  the  Vestry  is  made  necessary  by  the 
Statute  or  Canon  Law,  in  several  of  the  Dioceses.  In 
such  cases  the  Statute  or  Canon  is  simply  declaratory 
of  the  general  principle  of  law,  that  in  a  corporation, 
where  there  is  a  particular  person  who  is  called  the 
head,  such  person  forms  one  of  the  integral  parts  of 
that  corporation,  and  his  presence  is  necessary  to  con- 
stitute a  legal  meeting  thereof. — {Angel  &  Ames  on 
Corp.,  sees.  97,  503;  Case  of  St.  Marys  Church,  7  Serg. 
and  R.  [Pa.],  517;  Queen  v.  UOyly,  4  Perry  and 
Davidson  s  Rep.,  52;  Baker  et  al.  v.  Wood,  1  Curteis,  507.) 


VESTRY  MEE TINGS.  1 9 7 

The  Rector  is  always  described  as  the  first,  and  as  an 
integral  part  of  the  Parish.  In  citing  a  Parish  he  is 
specially  named.  He  is  the  "rector  parochiae"  the 
"prases  ecclesiasticus."  "On  sound,  legal  principles 
he  is  the  head  and  prases  of  the  meeting." — (  Wilson  v. 
M'Math,  3  Phill.  Rep.,  67;  Phillimores  "Ecc.  Law" 
[2nd.  Ed.  1895],/.  1497.) 

In  Cripp's  "Lazu  of  the  Clergy'  {6th  Ed.,  p.  684)  it  is 
stated :  "  The  Vestry  thus  constituted  is  incomplete 
without  its  head  or  president,  and  he,  as  we  have  seen 
by  the  Common  Law,  is  the  Minister  of  the  Parish, 
whether  Rector,  Vicar,  or  perpetual  Curate;  and  it  has 
been  said  that  he  has  a  special  duty  to  perform,  and 
must  be  responsible  to  the  Bishop  for  his  care  therein." 

To  constitute  a  legal  meeting  of  the  Vestry  there 
must  be  present,  as  we  have  shown,  not  only  the  Rec- 
tor, and  at  least  one  of  the  Wardens,  but  also  a  ma- 
jority of  the  Vestrymen,  that  is,  a  majority  of  the  full 
number  of  Vestrymen  which  the  Parish  is  entitled  to 
elect,  not  a  majority  merely  of  those  remaining  in 
office.  "  The  words,  a  majority  of  the  Vestrymen, 
evidently  mean  a  majority  of  the  number  which  the 
Statute  requires  to  compose  the  Board  of  Trustees;  not 
of  the  number  to  which,  honestly  or  otherwise,  by  de- 
sign or  accident,  the  body  of  Vestrymen  may  have 
been  reduced." — {Moore  v.  Rector,  etc.,  4  Abb.  N.  C, 
51;  Angel  &  Ames  on  Corp.,  sec.  503;  Rex  v.  Morris,  4 
East.,  17;  Rex  v.  Thornton,  Ibid.,  294;  Rex  v.  Miller,  6 
Durn.  &  East.  Rep.,  268.) 

RIGHTS  AND  DUTIES  OF  THE  PRESIDING  OFFICER. 

The  Rector,  when  present,  has  the  undoubted  right 
as  theprceses  ecclesiasticus,  to  preside  at  all  meetings  of 


198  LA  W  OF  THE  CHURCH. 

the  Vestry.  It  is  only  in  his  absence  that  a  Warden 
has  any  right  to  preside. 

While  the  Rector  has  the  right  to  preside,  he  has  no 
right  to  adjourn  the  meeting  when  it  has  once  been 
convened.  This  right  belongs  to  the  meeting  itself,  of 
which  the  Rector  is  but  one  member. — {Hoffman's 
"  Ecc.  Law,"  p.  75.) 

In  Stonghton  v.  Reynolds  (2  Strange,  1045),  the  ques- 
tion arose  as  to  whether  a  Rector  could,  ex  mero  motu, 
adjourn  an  election  without  the  consent  of  the  meet- 
ing, and  the  Court  decided  that  such  an  adjournment 
was  void,  and  that  while  the  Rector  had  the  power  of 
presiding,  it  did  not  follow  therefrom  that  he  possessed 
any  power  to  adjourn  the  election. 

In  Baker  &  Downing  v.  Wood  (1  Cartels'  Rep.,  507), 
the  Court  in  commenting  on  the  above  case,  said  : 
"  Most  undoubtedly,  in  such  circumstances,  there  is  no 
authority  for  the  power  assumed  and  exercised  by  the 
chairman  in  that  case." 

Judge  Hoffman,  after  reviewing  the  decisions  of  the 
courts  on  this  question,  says  ("Ecc.  Law" pp.  yy,  78), 
"  It  follows  from  these  principles  and  authorities,  as  I 
apprehend,  that  a  Rector  cannot,  by  withdrawing  from 
a  Vestry  once  duly  constituted,  prevent  its  finishing 
business  entered  upon,  or  from  entering  upon  business." 
And  again  :  "  Upon  the  whole,  I  consider  the  true 
conclusion  to  be,  that  when  once  a  Vestry  is  fully 
assembled,  a  Rector,  a  Warden  and  five  Vestrymen 
[that  number  being  a  majority  of  the  Vestrymen  then 
provided  by  Statute  in  the  State  of  New  York],  it 
becomes  a  massed  assembly,  governing  itself  by  the 
rules  of  Common  Law  in  analogous  cases;  that  the 
right  of  presiding  is  a  privilege  and  a  duty.     If  vacated 


VES  TR  Y  MEE  TINGS.  199 

wilfully  or  not  from  necessity,  it  cannot  dissolve  the  Ves- 
try, or  make  its  action  illegal."  The  same  rule  would, 
of  course,  apply  to  the  withdrawal  of  a  Warden  or  a 

Vestryman. 

CASTING   VOTE. 

Whether,  in  the  absence  of  any  law  restricting  the 
right  of  the  Rector  to  vote,  or  giving  to  him  but  one 
vote,  the  Rector  has  the  right,  first,  to  vote  as  a  mem- 
ber of  the  Vestry,  and  then,  in  case  of  a  tie,  to  give 
the  casting  vote,  is  a  question  not  wholly  free  from 
doubt.  But  there  is  no  doubt  that  in  those  States  and 
Dioceses  where  the  law  merely  states  that  the  Rector 
shall  have  "a  casting  vote,"  he  also  has  the  right  to 
vote,  first  as  a  member  of  the  Vestry,  and  then  give  a 
casting  vote  in  case  of  a  tie. — {Cripp's  "  Law  of  the 
Church  and  Clergy','  p.  692;  Blunt 's  "Book  of  Church 
Law''  p.  302  ;  Dale's  "  Clergyman's  Legal  Handbook," 
p.  122;   Queen  v.  D'Oyly,  4  P.  &  D.  Rep.,  52.) 

Judge  Hoffman  states  ("  Ecc.  Law," pp.  79,  80)  that 
the  clause  of  the  Statute  respecting  the  casting  vote 
was  examined  in  the  case  of  the  Church  of  the  Atone- 
ment in  1866.  The  facts  in  the  case  were  as  follows: 
At  a  meeting  of  the  Vestry  of  the  Church  named,  there 
being  no  Rector,  the  Senior  Warden  was  called  to  the 
chair.  A  resolution  was  offered  to  call  a  certain  cler- 
gyman to  the  Rectorship  of  the  Parish.  Five  of  the 
Vestry  voted  in  the  affirmative,  and  five,  including  the 
presiding  officer,  voted  in  the  negative,  whereupon 
that  officer  declared  the  resolution  lost.  It  was  claimed 
that  the  presiding  officer  had  no  right  to  vote  under  the 
Statute  giving  a  "  casting  vote"  to  such  officer,  except 
upon  an  equal  division  of  the  votes,  not  including  his 


200  LA  W  OF  THE  CHURCH. 

own,  and  therefore,  that  the  resolution  offered  was  car- 
ried. The  question  was  referred  to  Judge  Hoffman  for 
his  opinion,  which  was,  in  part,  "  that  by  the  true  con- 
duction of  the  Statutes,  a  Warden,  by  presiding,  did  not 
lose  his  privilege  of  voting  as  a  member  ;  and  the  phrase 
in  the  Statute  therefore  meant  a  casting  vote  in  the  sense 
of  a  double  vote.  Numerous  authorities  were  cited." 
The  question  came  before  the  Supreme  Court,  and  is 
fully  reported  in  the  case  of  People  ex  rcl.  Remington 
v.  Rector,  etc.  (48  Barb.,  603).  The  Court  in  rendering 
its  decision  therein  said  :  "  The  question  then  is, 
What  is  the  legal  signification  and  effect  of  the  phrase 
'and  have  the  casting  vote'?  Does  the  calling  a 
Church  Warden  to  the  chair  annul,  for  the  time  being, 
his  right  as  a  constituent  member  of  the  corporate 
body,  or  absolve  him  from  the  execution  of  any  trust 
or  duty  devolved  upon  him  as  such  member?"  After 
stating  that  no  authority  for  such  a  proposition  was 
cited,  except  Cushing's  "  Parliamentary  Practice"  the 
Court  proceeded  :  "As  a  majority  of  the  Vestry  did 
not  vote  in  favor  of  calling  the  relator,  he  was  not, 
therefore,  called  or  elected,  unless  the  Statute,  giving 
the  chairman  a  casting  vote,  is  to  be  construed  as 
meaning  a  vote  only  in  case  of  a  tie  arising  upon  the 
votes  of  the  other  members. 

"The  plain  reading  of  the  Statute  does  not  admit  of 
such  a  construction.  It  first  vests  the  power  of  elec- 
tion in  a  body  of  which  the  chairman  is  a  constituent 
member.  This  is  a  grant  to  every  such  member  of  a 
right  to  vote.  It  then  contains  another  grant  of  power 
to  the  presiding  officer,  virtute  officii,  in  the  words, '  he 
shall  have  the  casting  vote.' 

"  What  is  the  legal  effect  of  the  latter  grant  ?   By  the 


VES  TK  Y  MEE  TINGS.  201 

Common  Law,  a  casting  vote  sometimes  signifies  the 
single  vote  of  a  person  who  never  votes  but  in  the  case 
of  an  equality;  sometimes  the  double  vote  of  a  person 
who  first  votes  with  the  rest,  and  then,  upon  an  equal- 
ity, creates  a  majority  by  giving  a  second  vote,  (i  BL 
Com.  181,  n;  Jac.  Law  Die.  Parliament,  7.)  I  think 
that  in  the  Statute  under  consideration  the  term  •  cast- 
ing vote'  is  used  in  the  latter  sense." — (1  BL  Com.  478, 
n;  Cowp.,  377.) 

This  opinion  of  the  Court  is  in  complete  accord  with 
Ecclesiastical  Law  and  usage,  and  clearly  establishes 
the  right  of  the  Rector  as  the  presiding  officer  to  vote 
first  as  a  constituent  member  of  the  Vestry,  and  then, 
in  case  of  a  tie,  to  give  a  casting  vote. 

Where  the  law  expressly  states,  as  in  the  Diocese  of 
Pennsylvania,  that  the  Rector  shall  have  one  vote,  he 
has  no  right  to  a  casting  vote  if  he  has  already  voted 
upon  the  question  as  a  member  of  the  Vestry. — {Neil- 
son's  Appeal,  105  Pa.,  St.  Rep.,  180.) 

It  is  the  duty  of  the  Rector,  or  other  presiding  officer, 
to  submit  to  the  Vestry  every  question  presented  for 
their  consideration.  Of  his  obligation  to  do  so  there 
can  be  no  doubt,  provided  the  proposition  be  one  that 
is  properly  within  the  province  of  the  Vestry  to  act 
upon. 

"It  is,  on  the  other  side,  clear,"  says  Judge  Hoffman 
("  Ecc.  Law"  pp.  78,  79),  "  that  he  is  not  bound  to  put 
questions  or  resolutions  tending  to  censure  or  crim- 
inate himself.  When  acts  or  resolutions  are  proposed 
hostile  to  the  Rector,  as  under  the  Canon  respecting  a 
dissolution  of  the  connection,  or  where  a  Vestry  is 
authorized  to  present,  the  body  acts  of  necessity  as 
Warden   and  Vestrymen,  not   as   the   strict   integral 


202  LA  W  OF  THE  CHURCH. 

body.  (See  Hoffman's  "Law  of  the  Church"  pp.  323-25.) 
There  may  possibly  be  resolutions  of  neither  character, 
as  to  which  good  sense  and  mutual  forbearance  must 
be  the  guide." 

BUSINESS:    HOW   CONDUCTED. 

To  perform  any  valid  act  there  must  be  present  a  duly 
constituted  quorum  of  the  Vestry.  A  less  number  can 
transact  no  legal  business;  although  business  transacted 
by  less  than  a  quorum  of  a  Vestry  would,  no  doubt,  be 
held  to  be  legal  if  such  business  was  formally  ratified 
and  approved  at  a  subsequent  meeting  when  the  re- 
quired quorum  was  present,  provided  that  such  busi- 
ness was  only  current  and  ordinary  business,  not  affect- 
ing property  or  rights. 

While  the  presence  of  the  Rector,  if  there  be  one,  a 
Warden  and  the  majority  of  the  Vestrymen  is  neces- 
sary to  constitute  a  legal  Vestry  meeting,  yet,  when 
so  assembled,  the  integral  features  become  lost,  and 
the  members  constitute  one  body,  and  are  then  upon 
an  equality  of  power  as  to  every  corporate  purpose, 
each  member  having  one  vote,  save  that  the  presiding 
officer  has  a  casting  vote,  except  in  those  States  or 
Dioceses  where  the  law  expressly  provides  otherwise. 

In  the  case  of  St.  Marys  Cliurch  (7  Serg.  &  R.,  517) 
before  cited,  the  Court  held  that  while  each  integral 
part  must  be  represented  to  form  a  valid  meeting,  yet, 
when  legally  assembled,  the  majority  of  voices  must 
govern,  and  were  competent  to  do  a  corporate  act. 

(See  also  Bick  v.  Hanscon  9 Foster  \_N.  H.~\  Rep.,  213  ; 
Whiteside  v.  People,  26  Wendell,  633  ;  Ex  parte  Rogers,  7 
Coweris  Rep.,  526,  note;  King  v.  Bower,  1  Barn.  & 
Cress.,  492  ;  King  v.  Miller,  6  Dnrn.  &  East.  Rep.,  268.) 


VESTRY  MEE TINGS.  403 

It  has  already  been  shown  that  after  the  meeting  has 
once  been  organized,  the  withdrawal  of  the  Rector  or 
any  other  member  of  the  Vestry  cannot  prevent  the 
Vestry  from  finishing  the  business  then  under  consid- 
eration, or  even  from  entering  upon  new  business. 
Were  it  otherwise,  any  member  of  the  Vestry,  or  a  mi- 
nority thereof,  would  by  withdrawing  be  able  substan- 
tially to  exercise  a  veto  upon  the  action  of  the  major- 
ity.— {Hoffman's  " Ecc.  Law" p.  77.) 

While  a  Vestry  have  the  power  to  elect  a  Rector,  and 
to  give  their  consent  to  the  dissolution  of  the  rector- 
ship, they  have  no  power  whatever  to  investigate  any 
charges  that  may  be  made  against  him,  nor,  as  we  have 
already  shown,  have  they  any  power  to  dismiss  him,  or 
to  reduce  his  salary.  They  cannot  as  a  Vestry  formu- 
late charges  against  him  to  the  Bishop  or  Ecclesias- 
tical authority  of  the  Diocese,  unless  they  are  expressly 
authorized  to  do  so  by  the  law  of  the  Diocese.  As 
this  question  will  be  more  fully  examined  in  the  suc- 
ceeding chapter,  a  further  consideration  thereof  at  this 
time  is  unnecessary. 

It  is  the  duty  of  Wardens  and  Vestrymen,  when 
they  have  received  due  notice  of  a  Vestry  meeting, 
regularly  called,  to  attend  such  meeting.  Should  they 
persist  in  refusing  so  to  attend,  the  law  will  compel 
them,  at  the  instance  of  the  Rector,  to  attend,  provided 
it  is  shown  that  the  meeting  desired  is  necessary,  and 
their  presence  required  to  constitute  a  quorum. 

"  A  mandamus  will  lie  to  compel  Vestrymen  to  at- 
tend duly  called  meetings  of  the  Vestry,  where  it  is 
shown  that  they  intentionally  absent  themselves  ;  that 
such  meetings  are  necessary  and  cannot  be  held  in 
their  absence,  and  motion  for  the  writ  may  properly  be 


204  LA  W  OF  THE  CHURCH. 

made  by  the  Rector." — {People  ex  rel.  Kenney  v.   Wu 
nans,  29  St.  Rep.  {N.  Y.\  651.) 

WHEN  MEETINGS  ARE  LEGAL  WITHOUT  THE  PRESENCE 
OF  THE  RECTOR. 

It  is  hardly  necessary  to  state  that,  when  there  is  no 
Rector,  the  Wardens  and  Vestrymen  constitute  a  le- 
gal Vestry,  and  have  power  to  perform  any  corporate 
act,  except  that  no  valid  action  can  be  taken  to  alien- 
ate or  impair  the  title  to  the  Church  property  without 
the  consent  of  the  Bishop.  It  seems  to  be  the  better 
opinion  that  if  the  Rector  call  the  meeting  under  his 
hand,  such  meeting  would  be  legal,  even  though  the 
Rector  was  not  present.  It  is  also  provided  by  law  in 
some  of  the  States  and  Dioceses  that  if  a  Rector  be 
absent  from  the  State  or  Diocese  a  certain  length  of 
time,  as  may  be  designated  by  Statute  or  Canon,  the 
Vestry  may  meet  in  legal  meeting,  but  in  no  case,  when 
the  Rector  is  not  present,  can  the  Vestry  take  any  ac- 
tion to  dispose  of  any  of  the  real  property  of  the  Par- 
ish, or  any  part  of  the  capital  or  principal  of  its  per- 
sonal estate,  or  impair  in  any  way  the  rights  of  the 
Rector. 

In  New  York  State  there  is  a  Statute  to  this  effect. 
To  the  same  effect  is  the  Statute  Law  in  Maryland, 
except  that  the  Vestry  may  authorize  the  sale  of  real 
property  when  the  Rectorship  is  vacant,  with  the  con- 
sent of  the  Bishop.  It  is  unnecessary  to  consider  the 
Statute  Laws  of  the  various  States  which  govern  a  Rec- 
tor's relation  to  his  Vestry.  It  is  sufficient  to  say  that 
when  the  Statute  Law  provides  for  the  holding  of  Ves- 
try meetings,  and  also  provides  what  shall  constitute 
a   legal    Vestry   meeting,  such    provisions  of  course 


VESTRY  MEE TINGS.  *>5 

govern,  and  form,  so  far  as  they  expressly  provide, 
but  no  further,  the  absolute  law  both  for  the  Rector, 
and  for  the  Wardens  and  Vestrymen. 

In  some  States  and  Dioceses,  the  law  provides  that 
a  Warden  or,  in  a  few  cases,  that  a  certain  number  of 
the  Vestrymen  may  call  a  meeting.  But  if  the  Rec- 
tor should,  for  any  reason,  refuse  to  attend  a  meeting 
so  convened,  what  redress,  if  any,  could  be  had  ? 

Judge  Hoffman  in  considering  this  question  (u£cc. 
Law,"  p.  78)  says:  "  In  the  English  cases,  in  which  the 
power  to  convene  is  lodged  in  a  head  officer,  and  his 
presence  is  indispensable  to  constitute  the  body,  his 
obstinate  refusal  to  convene  it,  or  to  attend,  is  an  abuse 
of  power,  a  neglect  of  a  trust  which  the  King's  Bench 
will  punish,  and  compel  him  to  do  it  by  mandamus,  and 
will  allow  a  criminal  information  to  be  filed  against 
him." — (See  also,  Willcock on  Corp.,  Part  I., p.  29  ;  Rex. 
v.  Gaborian,  11  East.,']']  note ;  Rex.  v.  Church  Wardens, 
etc.,  of  St.  Martin's,  j  Barn.  &  Adolp.,  907;  Rex.  v. 
Church  Wardens  of  St.  Bartholomeivs,  2  Barn.  &  Adolp., 
506.) 

Under  the  decisions  of  the  English  Courts,  and  also 
of  our  own  Courts  {People  ex  rel.  Kenney  v.  Winans 
et  al.,  29  St.  Rep.  \N.  K],  651;  St.  Stephens  Church 
Cases,  25  Abb.  N.  C,  230,  before  cited),  if  it  was  shown 
that  a  meeting  was  necessary  for  the  best  interests  of 
the  Church,  that  such  meeting  could  not  be  held  with- 
out his  presence,  and  that  he  refused  to  attend  any 
such  meeting,  after  being  informed  of  the  subject  to  be 
considered,  a  writ  of  mandamus  might  lie  to  compel 
his  attendance,  although  the  question  is  not  wholly 
free  from  doubt. 

If  it  could  be  shown  that  the  Rector  had  any  discre- 


206  LA  W  OF  THE  CHURCH. 

tionary  power  in  the  matter,  unquestionably,  no  writ 
would  lie.  {High's  Ex.  Rem.,  Sec.  42;  Moses  on  Mand.,  82 ; 
State  v.  Kendall,  1 5  Neb.  262,  and  cases  therein  cited.) 
Doubtless  the  refusal  of  a  Rector  to  be  present  and 
preside  at  a  Vestry  meeting,  deliberately  persisted  in, 
after  he  had  received  notice  of  the  meeting,  and  of  the 
business  proposed  to  be  transacted,  would  afford 
ground  for  an  application  to  the  Ecclesiastical  Author- 
ity of  the  Diocese  for  a  dissolution  of  the  rectorship, 
under  the  Canon. 


CHAPTER  V. 

OF   THE   RECTOR. 

HIS   ELECTION  AND   CALL. 

TO  the  Wardens  and  Vestrymen  of  a  Church 
belongs,  as  we  have  already  shown,  the  power 
of  electing  and  calling  a  Rector.  The  con- 
gregation or  parishioners  have  no  power  whatever  in 
the  matter,  unless  such  power  be  expressly  conferred 
upon  them  by  Statute. 

The  proceedings  of  a  Vestry  relative  to  the  election 
and  call  of  a  Rector  have  already  been  commented 
upon,  and  need  no  further  consideration,  except  to 
state,  by  way  of  emphasis,  that  the  call,  being  a  legal 
contract,  and  the  salary  accruing  thereunder  a  debt 
recoverable  in  law,  it  should  be  made  in  writing,  and 
state  explicitly  the  stipulations  for  support. 

On  the  acceptance  of  the  formal  call  by  the  Rector- 
elect  (which  acceptance  should  also  be  in  writing)  and 
the  reception  of  the  Bishop's  consent  to  such  election, 
which  consent  should  have  been  previously  obtained, 
the  contract  between  Vestry  and  Rector  is  complete. 

While  Vestries  have  the  power,  under  the  Statute 
Law,  of  electing  the  Rector  of  the  Parish,  they  should 
ever  remember,  as  it  has  been  well  said,  that  "  this 
elective  right  of  a  Parish  does  not  make  the  man  whom 
they  elect  their  servant  ;  nor  does  it  make  them  inde- 
pendent of  and  above  him,  to  treat  him  as  they  please, 
as  they  would  any  hired  man.     It  is  only  the  popular 


ao8  LA  W  OF  THE  CHURCH. 

voice,  speaking  through  their  representative  organ, 
declaring  whom  they  will  have  to  be  their  Rector;  but 
he  whom  they  choose  is  a  Priest  of  God,  a  servant  of 
Jesus  Christ,  and  is  to  be  set  over  them  by  the  Holy 
Spirit.  He  is  the  bearer  of  a  Divine  commission  to 
them,  not  they  to  him.  He  is  charged  with  the  full 
responsibility  of  their  souls.  He  comes  freighted  with 
Divine  blessings  over  and  above  anything  the  people 
can  give.  They  elect  him  to  exercise  his  functions 
and  ministry  in  a  particular  field.  The  vote  designates 
the  field,  and  may  be  regarded  as  the  '  lot  cast  into  the 
lap';  but  the  vote  does  not  make  the  Priest,  it  only 
accepts  him  as  such,  and  limits  the  discharge  of  his 
duties  within  the  particular  Parish." 

The  Canons  of  the  Church  {Canon  15,  Sec.  Hi.)  re- 
quire that  on  the  election  of  a  Minister  into  any 
Church  or  Parish,  the  Wardens  thereof  shall  give  no- 
tice to  the  Ecclesiastical  Authority  of  the  Diocese 
of  such  election.     This  notice  may  be  in  the  following 

form  : 

"  We,  the  Church  Wardens  {or,  in  case  of  an  Assistant 
Minister,  We,  the  Rector  and  Church  Wardens),  do 
certify  to  the  Right  Rev.  {naming  the  Bishop),  or  to  the 
Rev.  {naming  the  President  of  the  Standing  Committee), 
that  {naming  the  person)  has  been  duly  chosen  Rector 
{or,  Assistant  Minister,  as  the  case  may  be)  of  {naming 
the  Parish  or  Church)." 

This  certificate  must  be  signed  by  the  Wardens,  and 
in  case  of  an  Assistant  Minister,  by  the  Rector.  The 
Bishop  or  the  Standing  Committee,  being  satisfied  that 
the  person  so  chosen  is  a  qualified  Minister  of  the 
Church,  shall  cause  the  said  certificate  to  be  transmitted 
to  the  Secretary  of  the  Convention  for  record. 


THE  RECTOR.  209 

LETTERS   OF   TRANSFER. 

If  the  Rector-elect  be  canonically  resident  in  another 
Diocese  than  the  one  in  which  the  Parish  so  electing 
him  is  situated,  he  must  first  procure  from  the  Bishop 
or  other  Ecclesiastical  Authority  of  the  Diocese  in 
which  he  last  resided  a  testimonial  setting  forth  his 
true  standing  and  character.  This  testimonial  must 
be  presented  by  the  Rector-elect  to  the  Ecclesiastical 
Authority  of  the  Diocese  to  which  he  proposes  to  re- 
move, as  directed  by  Canon. 

The  testimonial  may  be  in  the  following  words : 
"  I  hereby  certify  that  A.  B.,  who  has  signified  to  me 
his  desire  to  be  transferred  to  the  Ecclesiastical  Au- 
thority of ,  is  a  Presbyter  [or  Deacon]  of , 

in  good  standing,  and  has  not,  so  far  as  I  know  or 
believe,  been  justly  liable  to  evil  report,  for  error  in 
religion,  or  viciousness  of  life,  for  three  years  last 
past." 

This  Letter  Dimissory,  as  it  is  called  in  the  Canon, 
must  be  presented  by  the  applicant  to  the  Bishop  or 
Ecclesiastical  Authority  of  the  Diocese  named  therein 
within  six  months  from  the  date  of  its  transmission. 
If  not  so  presented,  it  becomes  wholly  void.  It  is 
made  the  duty  of  such  Ecclesiastical  Authority  to 
accept  the  said  Letters  within  three  months  from  its  re- 
ception, unless  the  Bishop  or  Standing  Committee 
should  have  heard  rumors,  apparently  well  founded 
and  sufficient  to  form  a  proper  ground  of  canonical  in- 
quiry and  presentment,  against  the  character  of  the 
Minister  named  therein ;  in  which  case,  the  Ecclesias- 
tical Authority  shall  communicate  the  same  to  the 
Ecclesiastical  Authority  of  the  Diocese  to  which  such 


210  LA  W  OF  THE  CHURCH. 

Minister  belongs.  And  unless  and  until  the  said 
Minister  be  exculpated  from  the  said  charges,  the 
Ecclesiastical  Authority  is  not  required  to  accept  the 
Letters  Dimissory. 

The  duty  of  the  Bishop  to  accept  such  Letters 
Dimissory  applies  only  to  a  letter  presented  by  a 
Minister  who  has  been  called  to  take  charge  of  a  Parish 
or  Congregation  in  his  Diocese.  The  acceptance  of  any 
Letters  Dimissory  presented  by  a  Minister  not  so  called 
is  left  by  the  Canon  to  the  discretion  of  the  Bishop, 
who  may  or  may  not  accept  it,  according  as  he  sees  fit. 

When  such  Letters  are  accepted,  it  is  made  the  duty 
of  the  Ecclesiastical  Authority  accepting  to  give  to 
the  Minister  named  therein  a  certificate  in  the  words 
following  : 

"I  hereby  certify  that  the  Rev.  A.  B.  has  been  ca- 
nonically  transferred  to  my  jurisdiction,  and  is  a  Min- 
ister in  good  standing." 

Until  he  has  received  such  certificate,  the  said  Min- 
ister has  no  right  to  officiate  as  the  Rector,  Stated 
Minister,  or  Assistant  Minister  of  any  Parish  or  Con- 
gregation of  the  Diocese  or  District  to  which  he  re- 
moves. The  Canon  also  provides  that  no  Minister 
residing  in  a  Diocese  to  which  he  has  not  been  canon- 
ically  transferred  shall  minister  therein  without  the 
license  of  the  Bishop. 

The  Bishop  accepting  the  Letters  Dimissory  is  re- 
quired to  give  prompt  notice  of  such  acceptance,  both 
to  the  applicant  and  to  the  Bishop  from  whom  it  came, 
and  the  canonical  residence  of  the  Minister  so 
transferred  dates  from  the  acceptance  by  the  Bishop 
of  his  Letters  Dimissory. — {Canon  16,  Sec.  v.,  of  the 
Digest) 


THE  RECTOR. 


A  QUALIFIED  MINISTER. 


The  wording  of  the  Canons  (Canons  15  and  16)  is, 
as  to  one  question,  unfortunately,  neither  clear  nor 
definite.  Section  v.  of  Canon  16  makes  it  the  duty  of 
the  Ecclesiastical  Authority  of  the  Diocese  to  accept 
within  three  months  after  it  is  presented,  the  Letters  Di- 
missory  of  a  Minister,  removing  into  another  Diocese, 
who  has  been  called  to  take  charge  of  a  Parish  or  Con- 
gregation therein,  provided  there  be  no  rumors  affect- 
ing his  character. 

This  section  of  the  Canon  seems  to  give  the  Bishop 
no  discretion  in  the  matter,  but  makes  it  mandatory 
upon  him  to  accept  such  Letters  and  receive  the  Minis- 
ter into  his  Diocese,  in  the  absence  of  any  rumors 
affecting  his  character. 

But  Section  iii.  of  the  preceding  Canon  provides  that : 
If  the  Bishop  or  the  Standing  Committee  "  be  satis- 
fied that  the  person  so  chosen  [by  the  Vestry  of  a 
Parish]  is  a  duly  qualified  Minister"'  of  this  Church,  the 
Bishop,  or  the  President  of  the  Standing  Committee, 
shall  transmit  the  said  certificate  to  the  Secretary  of  the 
Convention,  for  record.  This  Canon  would  seem  to 
give  to  the  Bishop  some  discretion  in  the  matter,  and 
to  permit  him,  first,  to  be  satisfied  that  the  person  so 
chosen  is  a  qualified  Minister  of  this  Church,  before  re- 
quiring him  to  admit  such  Minister  into  his  Diocese, 
thus,  apparently,  conflicting  with  Canon  16,  which 
leaves  him  no  discretion  in  the  matter,  but  requires 
that  he  shall  receive  him,  when  there  are  no  rumors 
affecting  his  character.  Are  these  two  Canons  in  irrec- 
oncilable conflict,  or  can  they  be  construed  in  harmony 
with  each  other? 


212  LAW  OF  THE  CHURCH. 

That  the  General  Convention,  in  enacting  these 
Canons,  intended  that  the  various  sections  thereof 
should  not  be  in  conflict,  but  in  harmony  one  with  the 
other,  is,  of  course,  beyond  question. 

It  is  also  a  well  established  rule  of  interpretation,  that 
the  different  parts  of  a  Statute  must  be  so  construed  as 
to  make  the  Statute  a  consistent  whole,  and  that  the 
construction  which  produces  the  greatest  harmony  and 
the  least  inconsistency  is  the  one  which  ought  to  prevail. 

While  the  English  Ecclesiastical  Law  is  superseded 
by  the  Canons  of  the  American  Church,  in  so  far  as 
they  provide,  yet,  as  we  have  already  shown,  when  any 
question  arises  as  to  the  interpretation  of  a  Canon,  such 
interpretation  must  be  had  in  the  light  of  the  English 
Law.  The  Canons  under  consideration  are  manifestly 
founded  on  the  provisions  of  some  of  the  English  Can- 
ons of  1603,  the  39th  Canon  of  which,  entitled,  "  Cau- 
tions for  Institution  of  Ministers  into  Benefices"  reads 
as  follows  : 

"  No  Bishop  shall  institute  any  to  a  benefice,  who 
hath  been  ordained  by  any  other  Bishop,  except  he 
first  show  unto  him  his  letters  of  orders,  and  bring  him 
a  sufficient  testimony  of  his  former  good  life  and  be- 
havior, if  the  Bishop  shall  require  it;  and  lastly,  shall 
appear,  upon  due  examination,  to  be  worthy  of  his 
Ministry." 

This  Canon  was  exhaustively  considered,  and  its 
provisions  construed,  in  the  celebrated  case  of  Gorham 
v.  The  Bishop  of  Exeter. — {Moore's  Rep.  of  "  T/ie 
Gorham  Case"  459-) 

The  Bishop  had  refused  to  institute  the  Rev.  Mr. 
Gorham  when  first  requested  to  do  so,  on  the  ground 
that  Mr.  Gorham  held   opinions   contrary  to  the  disci- 


THE  RECTOR. 


213 


pline  and  doctrine  of  the  Church  of  England,  and  he 
was  informed  by  the  Bishop  "  that  he  felt  it  his  duty  to 
ascertain,  by  examination,  whether  he  was  sound  in 
doctrine,  before  giving  him  institution." 

Mr.  Gorham  submitted  to  such  an  examination,  but, 
before  its  conclusion,  protested  against  its  continuance, 
on  the  ground  that  his  doctrine  had  been  sufficiently 
tested,  and  that  the  examination  was  becoming  inquis- 
itorial. At  the  conclusion  of  the  examination,  the 
Bishop  refused  to  institute  him,  "on  the  ground  of  the 
unsoundness  of  the  doctrines  stated  by  him  in  the  ex- 
amination." Recourse  was  then  had  by  Mr.  Gorham 
to  the  courts  to  compel  the  Bishop  to  institute  him. 
The  Dean  of  Arches,  before  whom  the  case  came,  up- 
held the  decision  of  the  Bishop,  and  sustained  the  right 
of  the  Bishop  to  examine  into  the  orthodoxy  of  a  Min- 
ister before  instituting  him  into  a  benefice. 

The  provision  of  the  Canon  of  the  American  Church, 
that  the  Bishop  is  to  be  satisfied  that  the  person  chosen 
as  Rector  of  a  Parish  by  the  Vestry  thereof  is  a  qualified 
Minister  of  the  Church,  before  he  shall  be  required  to 
receive  him  into  his  Diocese,  manifestly  intends,  in  the 
light  of  the  English  Law,  something  more  than  that 
the  Bishop  is  merely  to  be  satisfied  that  such  Minister 
has  been  ordained. 

The  term  qualified,  must,  as  Judge  Hoffman  main- 
tains, receiveamore  comprehensive  meaning  than  mere- 
ly that  he  has  been  ordained;  it  must  be  taken  to  mean 
that  the  Bishop  is  to  be  satisfied  of  the  general  fitness  of 
the  Minister  elected,  both  morally  and  intellectually, 
before  he  can  be  compelled  to  transmit  the  certificate 
of  the  Wardens,  as  to  the  election  of  such  Minister,  to 
the  Secretary  of  the  Convention  for  record,  and  thus 


«I4  LA  W  OF  THE  CHURCH. 

complete  such  election  to  a  Parish  under  his  juris- 
diction. 

Bishop  Stillingfleet  thus  states  the  English  rule,  as 
to  the  Bishop's  jurisdiction  in  the  matter  : 

"  The  general  rule  is,  and  it  was  so  resolved  by  the 
judges,  that  all  such  as  are  sufficient  causes  of  depriva- 
tion of  an  incumbent  are  sufficient  causes  to  refuse  a 
presentee.  But  by  the  Canon  Law  more  are  allowed 
— Multa  impediunt  promovendum  quae  non  dejiciunt" 
— {Stillingfleet 's  "Ea.  Cases"  Case  I.,  p.  73.) 

Judge  Hoffman  (" Law  of the  CJiurch" p.  283),  in  con- 
sidering the  term  qualified,  as  used  in  the  Canon  in 
question,  says  : 

"  The  power  which  thus  resides  in  the  Bishop,  and 
which  this  Canon  recognizes,  is  amply  supported  and 
illustrated  by  English  Authority.  Indeed,  there  is  no 
point  more  clearly  settled,  and  as  to  which  the  inter- 
ference of  the  civil  tribunals  is  more  restricted." 

This  section  of  the  Canon  is  also  in  complete  har- 
mony with  the  first  rubric  in  the  "Office  of  Institution," 
which  provides  that  the  Bishop  having  received  due 
notice  of  the  election  of  a  Minister  into  a  Parish  or 
Church,  and  "  being  satisfied  that  the  '  person  chosen 
is  a  qualified  Minister  of  this  Church,'  may  proceed  to 
institute  him  into  the  Parish." 

That  the  Bishop  has  the  right  to  make  such  inquiry 
into  the  moral  and  intellectual  qualifications  of  a  Min- 
ister chosen  by  the  Vestry  of  a  Parish  to  be  the  Rector 
thereof,  as  shall  satisfy  him  that  the  Minister  so  chosen 
is  a  qualified  Minister,  before  instituting  him,  is,  in  my 
judgment,  clearly  the  Law  of  the  Church.  No  other 
construction  of  the  term  qualified  is  consonant  with 
Ecclesiastical  Law  and  usage. 


THE  RECTOR.  215 

But  if  the  Bishop  has  the  right  to  make  such  inquiry 
as  shall  satisfy  him  that  the  Minister  chosen  is  a  qual- 
ified Minister,  before  instituting  him  as  Rector  of  a 
Parish,  it  is  obviously  clear  that  he  has  the  same  right 
to  make  such  inquiries  as  shall  satisfy  him  that  the 
Minister  so  chosen  is  a  qualified  Minister,  before  it  can 
be  made  his  duty  to  receive  him,  and  to  consent  to  his 
election  as  Rector  of  a  Parish  within  his  jurisdiction. 
No  other  construction  of  this  section  of  the  Canon 
under  consideration  is  consistent  with  the  "  tenet  of  an 
Apostolic  Episcopacy,  or  with  the  cardinal  principle  of 
the  Catholic  Church,"  recognized  as  such  by  the  Church 
of  England,  and  the  Church  in  America,  that  the 
Bishop,  virtute  officii,  is  the  source  of  Diocesan  Au- 
thority. 

When  the  Bishop  of  a  Diocese  receives  from  the 
Wardens  of  a  Parish  the  Canonical  Certificate  of  the 
election  of  a  Minister  to  a  Parish  or  Church  within  his 
jurisdiction,  it  seems  obvious,  not  only  that  he  has  the 
right  to  make  such  inquiries  as  shall  satisfy  him  that 
the  Minister  so  chosen  is  a  qualified  Minister  of  the 
Church,  but  also  that  he  may  decline  to  transmit  the 
Certificate  of  Election  for  record,  and  return  the  same 
to  the  Wardens  so  certifying,  with  his  refusal  to  con- 
sent to  the  election  of  such  Minister  as  Rector,  if  he 
be  not  satisfied  that  the  Minister  so  chosen  is  a  quali- 
fied Minister.  Such  a  construction  is,  in  my  judgment, 
the  only  construction  that  can  be  placed  upon  the 
words  of  the  Canon,  "If  the  Bishop  be  satisfied  that 
the  person  so  chosen  is  a  duly  qualified  Minister,"  con- 
sistent with  the  tenets  of  the  Church  and  the  principles 
of  Ecclesiastical  Law. 

The  question  next  arises,  Is  this  authority  and  right 


216  LAW  OF  THE  CHURCH. 

which  is  recognized  by  Section  iii.,  of  Canon  15,  re- 
stricted or  taken  away  by  Section  v.  of  the  next  Canon, 
which  makes  it  the  duty  of  the  Bishop  to  whom  Let- 
ters Dimissory  are  presented  by  a  Minister,  called  from 
another  Diocese  to  take  charge  of  a  Parish  within  the 
Diocese  of  such  Bishop,  to  accept  such  Letters  within 
three  months,  unless  the  Bishop  should  become  cog- 
nizant of  rumors  against  the  character  of  the  Minister 
concerned  ? 

I  think  not.  The  two  Canons  do  not  necessarily 
refer  to  the  same  question,  nor  do  I  think  that  it  was 
the  intention  of  the  Church  that  they  should.  Canon 
15  refers  to  the  consent  of  the  Bishop  to  the  election 
of  a  Minister  as  Rector  of  a  Parish,  and  recognizes,  as 
we  have  seen,  his  right,  first  to  be  satisfied  of  the  qual- 
ifications of  the  Minister  so  chosen  before  giving  his 
consent  thereto.  When  his  consent  has  been  given  to 
such  election,  the  election  is  completed,  and  a  legal 
call  may  then,  and  not  till  then,  be  transmitted  by  a 
Vestry  to  the  Minister  so  elected. 

Canon  16  has  no  reference  to  the  election  of  a  Min- 
ister ;  it  clearly  refers  only  to  a  Minister  who  has  already 
been  duly  elected  to  the  Rectorship  of  a  Parish.  Its 
wording  is :  "  If  a  Minister  removing  into  another 
Diocese,  who  has  been  called  to  a  Cure  in  a  Parish  or 
Congregation,  shall  present  Letters  Dimissory,"  etc. 
It  does  not  make  it  the  duty  of  a  Bishop  to  accept  the 
Letters  Dimissory  of  every  Minister  who  may  present 
such  Letters,  only  of  a  Minister  "who  has  been  called 
to  a  Cure  in  a  Parish." 

This  section  of  the  Canon  is  clearly  complemental  to 
Canon  15,  Sec.  iii.,  and  declaratory  of  the  rights  of  a 
Minister  who  has  been  duly  elected,  and  his  election 


THE  RECTOR.  217 

consented  to  by  the  Bishop,  in  accordance  with  the 
provisions  of  that  Canon. 

The  obvious  intent  of  Section  v.  of  Canon  16  is 
not  to  deprive  the  Bishop  of  his  right  first  to  be  satis- 
fied of  the  qualifications  of  a  Minister  elected  to  the 
Rectorship  of  a  Parish  within  his  jurisdiction,  before 
giving  his  consent  to  such  election  under  the  provisions 
of  Canon  15,  but  to  provide  that  after  the  Bishop  has 
acted  under  that  Canon,  and  given  his  consent  to  the 
election  of  a  Minister,  he  must  accept  the  Letters  Di- 
missory  of  such  Minister  whom  he  has  already  con- 
sented to  receive  into  his  Diocese,  and  which  consent 
forms  a  part  of  the  call  accepted  by  such  Minister. 

Canon  15  is  declaratory  of  the  right  of  the  Bishop, 
after  he  has  received  notice  of  the  election  of  a  Min- 
ister to  a  Parish  within  his  jurisdiction,  to  be  satisfied 
of  the  qualifications  of  the  Minister  so  elected  before 
giving  his  consent  to  such  election.  Canon  \6  is 
declaratory  of  the  right  of  such  Minister,  called,  with 
the  consent  of  the  Bishop,  to  the  Rectorship  of  a  Parish, 
and  having  accepted  such  call,  to  have  his  Letters  Dimis- 
sory  accepted  by  such  Bishop. 

Its  plain  intent  is  to  make  it  the  duty  of  the  Bishop 
to  receive,  as  a  qualified  Minister  of  the  Church,  one 
whom  he  has  already  consented  so  to  receive,  and  to 
accept  the  Letters  Dimissory  transferring  such  Minister 
to  his  jurisdiction,  within  a  certain  definite  time  after 
its  presentation. 

This,  I  submit,  is  the  only  fair  and  logical  interpre- 
tation that  can  be  had  of  the  sections  of  the  Canons 
under  consideration,  because : 

First.  It  is  the  only  interpretation  that  will  bring 
the  two  Canons  into  harmony  with  each  other. 


218  LA  W  OF  THE  CHURCH. 

In  the  "■American  a  fid  English  EncycLpcedia  of  Law" 
{Vol.  XXIII., pp.  306,  309),  it  is  stated  :  "All  parts  of 
the  same  Statute  must  be  taken  together.  If  one  part 
standing  by  itself  is  obscure,  it  may  be  aided  by  an- 
other." 

"That  construction  is  favored  which  gives  effect  to 
every  clause  and  every  part  of  the  Statute,  thus  pro- 
ducing a  consistent  and  harmonious  whole.  A  con- 
struction which  would  leave  without  effect  any  part  of 
the  language  used  should  be  rejected  if  an  interpreta- 
tion can  be  found  which  will  give  it  effect." — ( The  Eliza- 
beth, 1  Paine  [U.  S.~\,  10;  Sedgwick,  on  Con.  of  Statute 
Law,  199-201;  Montclair  v.  Ramsdell,  107  \U.  S.],  147; 
James  v.  Dubois,  16  N.  J.  L.,  285;  Palmer  v.  Stumph, 
29  hid.,  329 ;  Mayor,  etc.,  of  Baltimore  v.  Hozvard,  6 
Ear.  &/.  [Md.],  383.) 

Second.  It  is  the  only  interpretation  that  is  consonant 
with  the  general  principles  of  Ecclesiastical  Law, 
which,  it  is  to  be  presumed,  the  General  Convention 
did  not  intend  to  disregard  or  change. 

It  is  a  well  settled  rule  of  interpretation  that  in 
construing  a  Statute  the  "  whole  should,  if  possible,  be 
made  to  harmonize;  and  if  the  sense  be  doubtful,  such 
construction  should,  if  possible,  be  given  as  will  not 
conflict  with  the  general  principles  of  law,  which,  it 
may  be  presumed,  the  Legislature  would  not  intend  to 
disregard  or  change." — {Manuel  v.  Manuel,  13  Ohio  St., 
458;  Hollman  v.  Bennett,  44  Miss.,  322;  Pendleton  v. 
Bank  of  Ky.,  2  J.J  Marsh  [A/.],  149;  Jones  v.  Lamar, 
34  Fed.  Rep.,  454;  Dean  v.  Met.  El.  R.  Co.,  1 19  N.  Y.,  540.) 

The  interpretation  of  the  Canons  herein  contended 
for,  viz.,  that  Section  v.  of  Canon  16  in  no  way 
restricts   the    right,  recognized    in  Canon    15,  of  the 


THE  RECTOR.  219 

Bishop  to  be  satisfied  of  the  qualifications  of  a  Minister 
elected  to  the  Rectorship  of  a  Parish,  under  his  juris- 
diction, before  giving  his  consent  to  such  election  ;  that 
such  consent  is  necessary  to  complete  the  election  and 
to  constitute  such  elected  Minister  the  legal  Rector  of 
such  Parish ;  and  that  the  provisions  of  Section  v.  of 
Canon  16  making  it  the  duty  of  the  Bishop  to  accept 
the  "Letters  Dimissory"  of  a  Minister  "  who  has  been 
called  to  take  charge  of  a  Parish  or  Congregation  "  in 
his  Diocese,  do  not  apply  to  the  case  of  a  Minister 
presenting  such  "  Letters  Dimissory"  who  was  "called  " 
by  a  Vestry  without  first  obtaining  the  consent  of  the 
Bishop  to  such  election,  is  fully  sustained  by  the  de- 
cision of  the  Supreme  Court  of  the  State  of  New  York 
in  the  case  of  The  Recto?-  et  al.  of  St.  James  CJnirch, 
etc..  v.  Huntington,  etc.  (82  Hun,  125). 

From  the  statement  of  the  case,  it  appears  that  Mr. 
Brockway,  a  duly  ordained  Clergyman  of  the  Protestant 
Episcopal  Church,  residing  in  the  Diocese  of  Western 
New  York,  was  elected  Rector  of  St.  James'  Church,  in 
the  city  of  Syracuse,  in  the  Diocese  of  Central  New 
York,  by  the  Vestry  thereof  on  the  25  th  day  of  Novem- 
ber, 1892,  and  a  call  to  the  Rectorship  of  that  Parish 
was  then  transmitted  by  the  Vestry  to  the  said  Brock- 
way,  which  call  was  accepted  by  him  three  days  later, 
November  28th.  On  the  same  day,  November  28th, 
the  Vestry  sent  a  notice  in  writing  to  the  Bishop  of 
such  election.  The  said  Brockway  then  procured  a 
"  Letter  Dimissory  "  from  the  Bishop  of  Western  New 
York,  which  Letter  was  dated  December  1,  1892,  and 
delivered  the  same  to  Bishop  Huntington,  of  the  Dio- 
cese of  Central  New  York,  on  December  2,  1892.  The 
Bishop  declined  to  accept  the  said  Letter  Dimissory, 


220  LAW  OF  THE  CHURCH. 

and  returned  it  to  the  Bishop  of  Western  New  York  on 
the  ioth  of  May,  1893.  So  far  as  the  case  shows,  and 
it  was  so  alleged  by  the  plaintiff,  there  were  no  rumors 
affecting  the  said  Brockway's  character,  nor  did  the 
Bishop  allege  that  there  were  any,  so  far  as  the  case 
shows,  when  he  returned  the  said  Letter  to  the  Bishop 
of  Western  New  York. 

On  the  2d  of  June,  1893,  the  Bishop  was  requested 
to  give  the  Certificate  of  Transfer  provided  for  in  Sec- 
tion ii.,  of  Canon  18,  which  request  was  refused. 

On  September  20,  1893,  Bishop  Huntington  caused 
an  order  to  be  issued  on  Brockway,  inhibiting  him  from 
officiating  in  the  Diocese  of  Central  New  York. 

The  case  shows  that  there  was  some  correspondence 
between  the  Bishop  and  the  Vestry,  and  that  the  Bishop 
objected  to  the  election  of  Mr.  Brockway  as  Rector 
of  the  Parish,  and  refused  to  give  his  consent  thereto. 

The  complaint  alleged  that  the  Canons  as  to  Certifi- 
cate of  Transfer,  and  as  to  the  right  of  the  Bishop  to 
issue  an  order  of  inhibition,  were  null  and  void,  as  con- 
flicting with  the  laws  of  the  State.  The  relief  asked  for 
was,  substantially,  that  the  Bishop  be  compelled  to  give 
Mr.  Brockway  a  Certificate  of  Transfer,  that  the  order 
of  inhibition  be  set  aside  as  null  and  void,  and  that 
the  Bishop  be  restrained  from  interfering  with  the 
carrying  out  of  the  contract  between  Mr.  Brockway 
and  the  Vestry  of  St.  James'  Church. 

The  answer  of  the  Bishop  denied  most  of  the  material 
allegations  of  the  complaint,  and  in  substance  alleged 
that  the  acts  and  conduct  of  the  Bishop  had  been  in 
entire  conformity  and  in  accordance  with  the  rules  and 
Canons  of  the  Church. 

Judge    Merwin,   in    delivering    the   opinion    of  the 


THE  RECTOR.  221 

Court,  said  :  "  One  of  the  theories  of  the  complaint  is, 
that  these  Statutes  [referring  to  the  Statutes  giving 
Vestries  power  to  call  a  Rector,  etc.],  gave  the  Church 
Wardens  and  Vestrymen  so  absolute  a  power  to  call 
and  induct  a  Rector,  that  the  Canon  which  requires  a 
certificate  of  transfer  before  the  plaintiff  Brockway 
could  officiate,  and  the  Canon  which  authorizes  the 
defendant  to  prohibit  his  officiating,  were,  as  to  the 
plaintiffs,  null  and  void,  as  being  in  conflict  with  the 
Statutes  above  referred  to.  I  do  not  understand  that 
this  position  is  now  claimed  by  the  plaintiffs  to  be  cor- 
rect. On  the  contrary,  it  is  asserted  that  the  affairs 
of  St.  James'  Church  must  be  administered  in  accord- 
ance with  the  rules,  usages  and  customs  of  the  de- 
nomination to  which  the  corporation  belongs  {Peo- 
ple ex  rtl.  Peck  v.  Conley  42  Hun,  98,  and  cases  cited), 
and  the  plaintiffs  claim  that  the  defendant  should  be 
compelled  to  give  a  certificate  of  transfer  in  accordance 
with  the  Canon  on  the  subject,  and  that  the  order  of 
inhibition  should  be  set  aside  as  not  justified  by  the 
Canonical  provision.  So  that,  in  effect,  the  action  is 
to  compel  the  observance  by  defendant  of  the  Canons 
of  the  Church,  so  far  as  they  may  affect  the  right  or 
power  of  the  plaintiff  Brockway  to  carry  out  his  con- 
tract with  the  other  plaintiffs. 

"  The  right  of  the  civil  courts  to  interfere  in  Eccles- 
iastical matters  is  considerably  limited.  The  general 
rule  is  that  such  right  exists  only  where  there  are  con- 
flicting claims  to  Church  property,  or  funds,  or  the 
use  of  them,  or  where  civil  rights  are  involved. 

"  The  question  here  is,  whether  the  right  of  the  plain- 
tiff Brockway  to  officiate  as  a  clergyman  in  the  Dio- 
cese of  Central  New  York  is  such  a  civil  right  as  to 


222  LA  W  OF  THE  CHURCH. 

give  him  a  standing  in  the  civil  courts.  .  .  . 
The  theory  of  the  action  is  that  the  plaintiffs  need 
something  more  than  they  now  have,  in  order  to  make 
and  consummate  a  complete  and  operative  contract. 
.  .  .  The  right  of  Brockway  to  be  transferred  to 
the  Diocese  of  Central  New  York  was  simply  an  Ec- 
clesiastical right,  based  on  no  contract,  but  on  the 
Canons  of  the  Church. 

"  Have  we  any  right  to  order  the  specific  perform- 
ance of  the  Canon  or  supervise  the  action  of  the 
proper  officer  under  it  ?  The  weight  of  authority  is, 
I  think,  against  it.  But,  assuming  that  the  plaintiffs 
have  a  civil  right  that  may  be  considered  here,  the 
order  of  inhibition  is  in  their  way.  This  order  was 
issued  by  the  officer  who,  under  the  Canon  applicable 
thereto,  had  the  right  and  power  to  issue  such  an  order. 
He  had,  as  Bishop,  jurisdiction  of  the  subject-matter, 
and  Brockway,  the  person  to  whom  it  was  directed, 
was  within  his  Diocese  seeking  from  him  recognition. 
Brockway  had  submitted  to  him  his  '  Letter  Dimissory,' 
and  this  had  been  returned  to  the  Bishop  who  gave  it, 
and  the  defendant  had  refused  to  give  a  certificate  of 
transfer.  .  .  .  It  ['  the  order  of  inhibition ']  is 
alleged  to  be  in  conflict  with  the  law  of  the  State  in  that 
it  interfered  with  the  pending  contract  between  the 
plaintiffs,  but  this  ground  is  not  now  pressed.  No  good 
reason  is  apparent  for  treating  the  Canon  as  unreason- 
able or  in  conflict  with  the  law  of  the  State.  .  .  . 
It  seems  to  me  very  clear  that  the  defendant  had  juris- 
diction to  make  the  order,  and  if  so,  under  the  law  as 
laid  down  in  the  Connitt  and  the  Walker  cases,  we  have 
no  right  to  consider  the  merits  and  determine  whether 
there  was  just  cause  for  the  order.     It  being  valid  and 


THE  RECTOR.  223 

binding  on  the  parties  and  not  reviewable  here,  the 
plaintiffs  are  not  in  a  position  here  to  ask  the  Court 
for  relief.  They  cannot  ask  this  Court  to  aid  them  in 
completing  their  contract,  when  one  of  the  parties  to 
it  is  not  qualified  to  enter  into  it,  according  to  Canons 
and  rules  that  bind  both  parties. 

"  The  plaintiff  Brockway  voluntarily  entered  the  min- 
istry of  the  Episcopal  Church  and  thereby  became 
subject  to  the  rules  and  Canons  of  that  Church.  In 
case  of  any  dissatisfaction  with  the  manner  in  which 
the  Ecclesiastical  affairs  of  the  Church  were  adminis- 
tered, he  took  the  benefit  or  burden  of  whatever  rem- 
edies were  provided  for  within  the  Church.  He  has 
not  alleged  that  he  has  exhausted  the  remedies  within 
the  organization,  an  allegation  which  has  in  some 
cases  been  held  to  be  necessary.  Nor  is  it  alleged 
that  he  has  not  a  complete  remedy  within  the  Church 
for  any  injustice  the  defendant  may  have  done." 

OFFICE   OF  INSTITUTION. 

Among  the  Offices  of  the  Church,  is  an  "  Office  of 
Institution  of  Ministers  into  Parishes  or  Churches." 
It  was  formerly  provided  by  Canon  that  the  Bishop  or 
President  of  the  Standing  Committee  might,  at  the 
instance  of  the  Vestry,  proceed  to  have  a  Minister 
duly  elected  and  called  to  the  Rectorship  of  a  Parish, 
provided  he  be  a  Presbyter,  "  instituted  according  to 
the  Office  established  by  this  Church,  if  that  Office  be 
used  in  the  Diocese."  While  there  is  now  no  Canoni- 
cal provision  for  the  use  of  this  Office,  there  is  still  the 
provision  of  the  rubric. 

The  first  rubric  in  the  said  "  Office  "  provides  that 
"  the  Bishop  having  received  due  notice  of  the  elec- 


224  LA  W  OF  THE  CHURCH. 

tion  of  a  Minister  into  a  Parish  or  Church  as  prescribed 
by  the  Canon,  concerning  '  the  Election  and  Institu- 
tion of  Ministers,'  and  being  satisfied  that  the  '  person 
chosen  is  a  qualified  Minister  of  this  Church,'  may  pro- 
ceed to  institute  him  into  the  Parish." 

While  this  "  Office  of  Institution  "  does  not  confer 
upon  the  Rector  of  a  Parish  any  rights  not  pre-exist- 
ing, it  recognizes  those  rights  which  are  inherent  in 
the  office  of  Priest- Rector,  and  expresses  the  mind  and 
will  of  the  Church  as  to  the  relation  which  the  Rector 
of  a  Parish  sustains  to  the  Vestry  thereof,  and  is  the 
key  to  the  true  interpretation  of  her  laws  relating  to 
the  respective  rights  of  Rector  and  Vestry  in  her  tem- 
poralities. 

The  "  Office  of  Institution  "  is  therefore  deserving 
of  our  careful  consideration.  This  Office  is  manifestly 
founded  upon  the  Office  of  "  Induction "  of  the 
Church  of  England.  The  seventeenth  Canon  of  the 
General  Convention  of  1789  referred  to  "the  induction 
of  a  Minister  into  any  Church  or  Parish  "  as  a  matter 
of  course  and,  by  a  fair  implication,  would  seem  to 
have  required  it.  As  no  "  Office  of  Induction  "  had  at 
that  time  been  set  forth  by  the  American  Church, 
the  induction  of  a  Minister  into  a  Church  implied, 
of  necessity,  induction  according  to  the  Office  of  the 
English  Church.  And  until  1804,  when  the  Church 
set  forth  and  established  her  own  "  Office  of  Induc- 
tion," every  Minister  inducted  into  a  Church  or  Parish 
was  inducted  according  to  the  "Office  of  Induction" 
of  the  Church  of  England,  and  which,  until  super- 
seded, was  the  "Office  of  Induction  "  of  the  American 
Church. 

Our  first  inquiry,  therefore,  must  be  as  to  the  mean- 


THE  RECTOR.  225 

ing  of  the  word  "  Induction,"  as  used  in  the  Office  of 
the  Church  of  England. 

Burn,  in  his  work  on  "Ecclesiastical  Law  "  (  Vol.  I., p. 
167),  says  that  the  whole  matter  of  admission,  institu- 
tion and  induction  is  well  explained  in  Sir  Simon 
Degge's  "Parson's  Counsellor,"  which  he  quotes  as  fol- 
lows: "  If  the  Ordinary,  etc.;  upon  the  examination  of 
the  Clerk,  find  him  fit  in  all  points,  as  above  in  the  first 
chapter  is  directed,  then  he  admits  him  in  these  words: 
Admit  to  te  habilem,  etc.,  and  thereupon  the  Ordinary 
institutes  him  in  these  words:  Instituo  te  rectorem 
ecclesice  parochialis  de  C.  ct  Jiaberc  curam  animarum, 
et  accipe  curam  tuam  et  me  am. 

"  When  the  Bishop  hath  instituted  the  Clerk,  the  Ordi- 
nary maketh  a  mandate  under  seal  to  the  Archdeacon 
of  the  place,  or  to  such  ether  Clergyman  as  he  pleases, 
to  induct  the  Clerk;  and  it  may  be  made  by  the  dean 
and  chapter,  but  not  by  the  patron  ;  for  though  by  the 
institution  the  Church  is  full  against  all  persons  except 
the  King,  yet  he  is  not  complete  parson  till  induction; 
for  by  the  institution  he  is  admitted  ad  officium,  to 
pray  and  preach,  yet  he  is  not  entitled  ad  beneficium 
until  he  be  formally  inducted;  which  maybe  done  by  the 
delivery  of  the  ring  of  the  church  door,  or  latch  of  the 
church  gate,  or  by  delivery  of  a  clod  or  turf  and  twig 
of  the  glebe;  but  the  most  common  and  usual  way  is,  and 
therefore  the  safest,  by  delivery  of  the  bell  rope  to  the 
newly  instituted  Clerk,  and  the  toiling  the  bell." 

Three  separate  acts  are  herein  noted,  admission,  in- 
stitution and  induction. 

First :  As  to  admission.  Nearly  all  the  churches  in 
England  in  the  early  times  were  built  by  the  lords  of 
the  manor,  or  other  individuals,  to  whom  the  law  gave 


226  LA  W  OF  THE  CHURCH. 

the  right  to  nominate  the  persons  who  should  minis- 
ter in  such  Churches  and  be  entitled  to  receive  the  re- 
venues from  the  endowments  thereof.  This  right  of 
nomination  was  termed  an  advowson,  which  Black- 
stone  says  is  defined  to  be  "  the  right  of  presentation 
to  a  Church  or  Ecclesiastical  benefice." 

This  right  of  a  patron  to  present  to  a  benefice  is 
subject  to  one  limitation,  the  person  so  presented  must 
be  a  fit  person;  "and  this  fitness  is  to  be  decided 
(subject  to  the  right  of  appeal)  by  the  Bishop." 
If  a  benefice  was  to  be  conferred  upon  a  mere 
layman  he  must  first  be  ordained,  and  the  Bishop 
had  the  right  to  examine  him,  and,  if  he  saw  fit,  to 
refuse  him  ordination.  The  right  of  the  Bishop  to 
inquire  into  and  judge  of  the  qualifications  of  candi- 
dates for  benefices  was  recognized  by  law  as  early  as 
the  fifth  century.  In  the  "  Novell  of  Justinian  "  it  was 
decreed  that  if  any  man  erected  an  oratory  and  de- 
sired to  present  a  Clerk  thereto,  he  must  first  be  nomi- 
nated to  the  Bishop,  who  was  to  judge  of  his  qualifica- 
tions, and,  when  these  were  sufficient,  then  the  Bishop 
was  to  admit  the  Clerk.  After  a  Clergyman  has  been 
admitted,  the  Bishop  may  then  proceed  to  iustitutehim. 
The  Bishop  may  himself  exercise  this  right  of  institu- 
tion, or  he  may  delegate  such  right  to  another;  nor  is  it 
necessary  that  it  should  be  performed  in  the  Diocese 
of  the  Bishop  instituting,  it  may  be  performed  any- 
where the  Bishop  and  the  Clergyman  seeking  institu- 
tion maybe. — {Blunt' s  "  Book  of  Church  Law"  p.  240.) 

The  ceremony  of  institution  is  exceedingly  simple. 
The  Clergyman  to  be  instituted  kneels  before  the 
Bishop  or  his  Commissary,  as  the  case  may  be,  holding 
in    his    hand   the    written    instrument    of  institution, 


THE  RECTOR.  227 

under  the  Episcopal  seal.  This  instrument,  thus  held, 
the  institutor  reads  aloud,  the  pith  of  which  is  as  fol- 
lows :  "  We  do,  by  these  presents,  commit  unto  you 
the  cure  and  government  of  the  souls  of  the  parish- 
ioners of  said  Parish,  and  do  authorize  you  to  preach 
the  Word  of  God  in  the  Parish  church  aforesaid,"  etc. 
This  act  of  institution  confers  upon  the  person  in- 
stituted the  jus  ad  rent,  but  not  the  jus  in  re.  It  in- 
vests him  with  all  spiritual  functions,  but  conveys  no 
temporal  right.  His  legal,  temporal  rights  are  confer- 
red upon  him  by  another  act  termed  "induction," 
which  must  take  place  in  the  church  in  which  he  min- 
isters, or  is  to  minister.  The  Bishop  issues  a  mandate 
to  the  Archdeacon,  or  some  other  clergyman,  to  induct 
the  Minister  already  instituted. — {Blunt 's  "  Book  of 
Church  Laiv,"  p.  240.) 

The  ceremony  of  induction  usually  consisted  in  the 
inductor  taking  the  hand  of  the  person  to  be  inducted 
and  laying  it  upon  the  key  or  ring  of  the  church  door, 
or,  if  there  was  no  such  key  or  ring,  then  upon  any  part 
of  the  church  wall,  or  churchyard,  and  saying  to  him 
these  words,  or  words  of  similar  import:  "  By  virtue 
of  this  mandate,  I  do  induct  you  into  the  real,  actual, 
and  corporal  possession  of  this  church,  with  all  the 
rights,  profits  and  appurtenances  thereto  belonging." 
The  inductor  then  opens  the  door  of  the  church  and 
puts  the  person  inducted  within  the  church,  who  then 
usually  tolls  the  bell  as  a  proclamation  to  the  parish- 
ioners that  he  is  in  possession  of  the  temporalities  of 
the  church.  The  effect  of  this  induction  was  to  confer 
the  jus  in  re,  the  complete  and  full  legal  rights  of 
property,  the  actual  corporal  possession  of  the  free- 
hold of  the  church,  churchyard,  rectory,  glebe,  etc., 


228  LA  W  OF  THE  CHURCH. 

upon  the  person  already  instituted  to  the  cure  of  souls. 
— (See  Burn's  " Ecc.  Law"  [Ed.  1842],  Vol.  I., p.  173; 
Blunt' s  "Book  of  Church  Law," pp.  242,  243.) 

This  was  the  English  Law  and  the  Law  of  the  Colon- 
ial Church.  It  was  also  the  Law  of  the  American 
Church,  so  far  as  it  was  applicable,  at  the  time  when 
the  "  Office  of  Induction  "  was  set  forth  and  established 
by  the  Convention  of  1804.  While  it  was  the  Law  of 
the  Colonial  Church,  yet  was  it  impossible  for  that 
Church  to  comply  with  all  the  formalities  of  that  Law. 
There  was  no  patron  to  present,  and  no  Bishop  to  whom 
presentation  could  be  made. 

The  general  system  which  prevailed  in  the  Colonies 
was  a  right  of  presentation  by  the  Vestry  or  the  Parish, 
and,  in  some  cases,  of  induction  by  the  Governor.  In 
the  Plantation  of  Virginia,  for  instance,  a  Statute 
enacted  in  1642  provided  that  the  Governor  was  to 
induct  any  Clergyman  into  a  Parish  who  might  be  pre- 
sented by  such  Parish.  Dr.  Hawks  states  that  he 
believes  this  right  to  have  been  exercised  in  the  Plan- 
tation of  Virginia  up  to  the  period  of  the  Revolution. 

The  form  of  induction  was  as  follows  :   " A.B.,  His 

Majesty's  Lieutenant  and  Governor-General,  etc.,  To 
the  Vestry  of Parish  in :  In  virtue  of  the  pre- 
sentation which  you  have  made  to  me  of  to  be 

your  Minister,  I  do  induct  him  into  the  real  and  cor- 
poral possession  of  the  Parish  of in ,  with  all 

the  right,  profits,  and  appurtenances  thereof." — 
{Hawks'  "Contr.,"  Vol.  I.,  pp.  53,  88;  cited  in  Hoff- 
man's "  Law  of  the  Church"  p.  290.) 

In  some  of  the  other  Colonies,  similar  Statutes  were 
passed.  The  General  Convention  of  1789  enacted  a 
Canon  (Canon  XVII.)  requiring  "  that  on  the  indue- 


THE  RECTOR. 


229 


tion  of  a  Minister  into  any  Church  or  Parish,  the  parties 
shall  deliver  or  cause  to  be  delivered  to  the  Bishop,  or 
to  the  Standing  Committee  of  the  Diocese  or  District, 
notice  of  the  same  in  the  following  form,  or  to  this 
effect  :  "  We,  the  Church  Wardens,"  etc.,  the  form  of 
notice  being  almost  identical  with  the  form  required  by 
the  former  Canon. 

The  right  of  the  Bishop  to  be  satisfied  that  "  the 
person  so  chosen  is  a  qualified  Minister  of  this  Church" 
was  also  recognized  by  this  Canon  in  substantially  the 
same  language  as  that  now  used  in  Canon  15,  Section 
in.,  of  the  present  Digest.  It  was  the  evident  intention 
of  the  Convention  of  1789,  in  enacting  this  Canon,  to 
supply  some  of  the  forms  required  by  the  English  Office 
of  Induction.  The  notice  of  the  election  of  a  Minister, 
required  to  be  given  to  the  Bishop  by  the  Church  War- 
dens, was  to  take  the  place  of  presentation  by  a  patron, 
while  the  Bishop  or  Standing  Committee  were  required 
to  be  satisfied  that  the  person  so  elected  was  "a  qualified 
Minister  of  this  Church."  Three  things,  as  Dr.  Hawks 
well  says  ("  Con.  and  Canons"  p.  269),  were  clearly 
within  the  intention  of  the  General  Convention  of  1789 
in  framing  this  Canon. 

"  First,  to  provide  the  way  of  accomplishing  something 
which  they  called  induction;  secondly,  as  in  England, 
to  allow  no  one  to  be  inducted,  but  one  shown  to  be 
canonically  qualified,  to  the  satisfaction  of  the  Bishop; 
and  thirdly,  to  give  to  the  inducted  Minister  all  the 
benefits  of  induction  which  the  peculiar  situation  of  our 
Churches  and  country  would  allow;  pecuniary  profit 
from  any  fixed  source  of  Ecclesiastical  revenue  being 
out  of  the  question,  no  other  privilege  remained  but 
that  of  control  over  the  church  edifice;  and  with  the 


230  LA  W  OF  THE  CHURCH. 

common  opinion  then  entertained  of  the  effect  of  in- 
duction, in  this  particular,  it  can  hardly  be  doubted 
that  they  designed,  as  far  as  they  could,  to  confer  such 
control." 

In  1804,  the  General  Convention  amended  the  17th 
Canon  of  1789  by  the  addition  of  two  provisions,  the 
first  of  which  made  induction  necessary  in  all  cases  of 
the  election  of  a  Minister  to  a  Parish.  It  provided  that 
if  the  Minister-elect  be  a  Presbyter,  the  Bishop  "  shall 
proceed  to  have  him  inducted  according  to  the  Office 
established  by  this  Church."  The  second  additional 
provision  declared  that  "  no  Minister,  who  may  here- 
after be  elected  into  any  Parish  or  Church,  shall  be  con- 
sidered as  a  regularly  admitted  and  settled  Parochial 
Minister  in  any  Diocese  or  State,  or  shall,  as  such,  have 
any  vote  in  the  choice  of  a  Bishop,  until  he  shall  have 
been  inducted  according  to  the  Office  prescribed  by 
this  Church."  It  will  be  noted  that  reference  is  made 
in  the  Canon  to  the  Office  of  Induction  "  as  established 
by  this  Church."  This  "  Office  of  Induction,"  with  its 
rubrics,  as  set  forth  and  established  by  the  Convention 
of  1804,  was,  in  all  its  essential  features,  identical  with 
the  present  "  Office  of  Institution." 

A  rubric  provided  that  "  Morning  Prayer  ended, 
the  Priest  who  acts  as  the  Inductor,  standing  within 
the  rails  of  the  altar,  shall  say:  "  Then  followed  the 
announcement  to  the  congregation  that  the  purpose 
of  the  assembly  was  to  induct  the  elected  Minister  as 
Rector  of  the  Church,  and  inviting  any  one  present 
to  show  just  cause  why  he  should  not  be  so  in- 
ducted. Then,  if  no  cause,  or  none  sufficient  in  the 
opinion  of  the  Inductor,  was  shown,  the  Inductor  was 
directed  to   "read  the  letter  of  induction ;   and  then 


THE  RECTOR.  231 

shall  the  Senior  Warden  {or  the  member  of  tlie  Vestry 
supplying  his  placed)  present  the  keys  of  the  Church  to 
the  new  incumbent,  saying:  In  name  and  behalf 
of Parish  (or  Church),  I  do  receive  and  acknow- 
ledge you,  the  Rev.  A.  B.,  as  Priest  and  Rector  (or 
Associated  Rector,  or  Assistant  Minister,)  of  the  same, 
and  in  token  thereof,  give  into  your  hands  the  keys 
of  this  church. 

"  Then  the  new  incumbent  shall  say  : 

"I,  A.  B.,  receive  these  keys  of  the  House  of  God 
at  your  hands,  as  the  pledges  of  my  induction,  and  of 
your  parochial  recognition,  and  promise  to  be  a  faithful 
shepherd  over  you,  in  the  name  of  the  Father  and  of 
the  Son  and  of  the  Holy  Ghost." 

Dr.  Hawks  has  made  this  first  Canon  of  1804,  and 
this  "  Office  of  Induction  "  as  established  by  the  Con- 
vention of  1804,  the  subject  of  a  note  so  able  and  so 
correct  in  its  conclusions  that  I  cannot  forbear  from 
quoting  it.  He  says  :  "  Such  was  the  office  alluded  to 
in  this  Canon;  and  to  this  solemn  and  public  delivery 
of  the  keys  it  seems  difficult  to  attach  any  meaning, 
unless  we  consider  it  as  a  substitute  for  the  formal 
ceremony  of  induction  in  the  English  Church,  by 
placing  the  hand  of  the  incumbent  upon  the  keys  or 
ring  of  the  door. 

"  Viewed  in  this  light  it  appears  intelligible  enough. 
It  surely  was  not  necessary  to  introduce  so  grave  a 
ceremony  for  the  mere  purpose  of  certifying  to  the 
world  that  the  relation  of  pastor  and  people  had  been 
created  by  the  election  of  the  incumbent;  besides,  this 
fact  had  already  been  announced  in  due  form  by  the 
inductor. 

"  For  what,  then,   was  it  introduced  ?     Beyond  all 


232  LA  W  OF  THE  CHURCH. 

question,  it  was  designed  by  those  who  framed  this 
office  (viz.,  the  Bishops,  Priests  and  laymen  assem- 
bled in  General  Convention)  to  be  a  symbolical  de- 
livery. A  symbolical  delivery  of  what  ?  The  keys  of 
a  house,  placed  in  the  keeping  of  a  person,  import  the 
possession  of  the  house  to  be  in  that  person.  They 
imply  that  the  control  of  it  belongs  to  that  person. 
The  new  incumbent,  in  his  reply,  when  he  receives  the 
keys  from  the  Warden,  recognizes  the  building  as  "the 
house  of  God";  and,  of  course,  takes  possession  of  it, 
under  the  symbolical  delivery,  to  exercise  over  it  such 
control  only  as  is  consistent  with  its  character  as  the 
house  of  God:  he  virtually  pledges  himself,  that  while 
in  his  possession,  it  shall  sustain  no  other  character; 
he  takes  upon  himself  the  duty  (which  must  be  con- 
fided somewhere)  of  guarding  the  edifice  from  dese- 
cration. 

"  What  may  or  may  not  be  desecration,  in  the  judg- 
ment of  an  incumbent,  is  a  distinct  question  with  which 
we  have  no  concern,  in  seeking  to  discover,  from  this 
Canon,  the  intention  of  those  who  made  it;  and  by 
this  Canon  and  Office  of  Induction,  thus  incorporated 
into  it,  to  us,  at  least,  it  would  seem  that  the  highest 
legislative  authority  'in  the  Church  has  declared  the 
intention  to  be,  by  a  symbolical  delivery  of  the  keys, 
on  the  part  of  the  Vestry,  to  confide  the  custody  and 
control  of  the  church  edifice  to  the  Minister,  for  the 
purpose  of  keeping  it  sacred  as  '  the  house  of  God.'" — 
{Hawks'  "  Con.  and  Canons" p.  273.) 

The  Canon  of  1804  made  induction  necessary,  in  all 
cases  of  the  election  of  a  Minister  to  a  Parish,  and 
deprived  the  Minister  not  so  inducted  of  the  privilege 
of  voting  for  a  Bishop,  or  of  being  considered  as  a  reg- 


THE  RECTOR.  233 

ularly  admitted  and  setted  parochial  Minister  in  any  Dio- 
cese. Bishop  White  states  ("  Memoirs"  \st  Ed.,p.  255): 
"  No  objection  had  been  made  to  the  office ;  but  the  re- 
quiring of  induction  as  essential  to  a  valid  settlement 
was  evidently  perceived  to  militate  against  the  ideas, 
so  prevalent  in  many  places,  of  dismissing  Ministers  at 
pleasure.  ...  In  Maryland  the  measure  interfered 
directly  with  the  Vestry  Law.  From  Carolina  there 
was  a  memorial,  desiring  an  alteration  of  the  Canon. 
And  in  other  places  complaints  were  known  to  have 
been  made." 

The  Convention  of  1808  re-enacted  the  Canon  of 
1804,  with  the  following  changes  :  the  word  "  induc- 
tion "  was  changed  to  "  institution,"  and  it  was  newly 
provided,  in  order  to  meet  the  objections  raised  by  the 
Dioceses  of  Carolina  and  Maryland,  that  :  "  This  Canon 
shall  not  be  obligatory  on  the  Church  in  those  Dioceses 
or  States  with  whose  usages,  laws,  or  charters  it  inter- 
feres. Nor  shall  anything  in  this  Canon,  or  in  any  other 
Canon,  or  in  any  service  of  the  Church  relative  to  the 
office  of  Associated  Rectors,  apply  to  the  Church  in 
those  States  or  Dioceses  where  this  Office  is  not  recog- 
nized by  the  Constitution,  Laws,  or  Canons  thereof. 

"  But  it  is  to  be  understood  that  this  Church  designs 
not  to  express  any  approbation  of  any  laws  or  usages 
which  make  the  station  of  a  Minister  dependent  on 
anything  else  than  his  soundness  in  the  faith,  or  wor- 
thy conduct.  On  the  contrary,  the  Church  trusts  that 
every  regulation  in  contrariety  to  this  will  be  in  due 
time  reconsidered  ;  and  that  there  will  be  removed  all 
hindrances  to  such  reasonable  discipline  as  appears  to 
have  belonged  to  the  Churches  of  the  most  acknow- 
ledged orthodoxy  and  respectability." 


234  LA  W  OF  THE  CHURCH. 

The  Canon  of  1804  referred  to  the  Office  of  Indue- 
tion  "established  by  this  Church"  ;  the  Canon  of  1808 
referred  to  the  Office  of  Institution  "  established  by 
this  Church."  But  that  Office  of  Institution  was  pre- 
cisely the  same  as  the  present  Office  of  Institution, 
and  the  same  as  the  former  Office  of  Induction,  except 
in  the  substitution  of  the  words  institute  and  insti- 
tutor,  for  induct  and  inductor,  thus  clearly  evidencing 
that  the  Convention  in  changing  the  name  of  the  Of- 
fice had  no  thought  or  intention  of  changing  either  its 
nature  or  import.  Bishop  White,  in  speaking  of  the 
action  of  the  Convention  of  1808,  merely  says  ("  Me- 
nuirs,"  1st  Ed , p.  30):  "  'The  Office  of  Induction'  es- 
tablished by  the  last  Convention  was  changed  in  name 
to  '  The  Office  of  Institution,'  and  rested  on  recommen- 
dation, not  on  requisition,  as  before." 

In  changing  the  name  of  the  Office,  it  is  obvious 
that  the  Convention  of  1808  did  not  fully  understand 
the  technical  difference  between  the  two  Offices  of  In- 
duction and  Institution,  as  used  in  the  English  Church, 
but  supposed  that  the  words  induction  and  institu- 
tion were  synonymous.  The  change  in  the  name  of  the 
thing  did  not  change  the  thing  itself.  The  same  cer- 
emony of  a  delivery  of  the  keys  of  the  church  to  the 
Minister  by  the  Church  Warden,  accompanied  by  the 
same  identical  form  of  words,  was  retained.  The  re- 
marks of  Dr.  Hawks  on  this  point  are  most  pertinent. 
He  says  ("  Con.  and  Canons"  p.  27/):  "  Whatever,  in 
the  intention  of  the  makers  of  the  Canon  of  1804,  was 
meant  by  the  formal  solemnities  in  the  Office  of  In- 
duction, it  is  obvious  must  here  have  been  meant  by 
retaining  the  very  same  ceremonies  in  the  Office  of  In- 
stitution.    The    name  given  to  the  act  cannot  possi- 


THE  RECTOR.  235 

bly  change  its  nature,  unless  it  were  plain  that  such 
name  was  given  with  a  full  knowledge  of  its  technical 
import.  Here  the  proof  is  direct  that  there  was  no 
such  knowledge,  and  consequently  no  intention  to  be 
bound  by  the  strictness  of  technical  language. 

"  In  truth,  the  Convention  defines  what  it  means  by 
institution,  by  referring  to  an  Office  prescribing  some- 
thing utterly  different  from  English  institution,  and 
precisely  agreeing  with  what  they  had  before  called 
induction.  The  conclusion  follows  that  they  defined 
institution  to  mean  induction,  and  by  such  definition 
they  effectually  shut  the  door  against  a  construction 
which  would  bind  them  by  technical  meaning. 

"  Further,  if  any  legal  effects  resulted  from  the  per- 
formance of  the  solemn  acts  in  the  Office  of  Induction, 
whatever  those  effects  may  have  been,  precisely  the 
same  must  follow  upon  institution,  because  the  acts 
are  the  same  ;  and  the  law,  regardless  of  the  name, 
will  look  only  to  the  acts  done,  and  declare  the  effect 
of  them." 

It  is  hard  to  see  how  these  conclusions  of  Dr.  Hawks 
can  be  successfully  controverted  ;  and  so  far  as  I  have 
been  able  to  find  they  never  have  been  controverted, 
and  will  probably  be  denied  by  no  one. 

The  Convention  of  1814  repealed  so  much  of  the 
29th  Canon  of  1808  as  required  the  institution  of  an 
Assistant  Minister  before  he  could  be  considered  as  a 
regularly  admitted  and  settled  parochial  Minister  in 
any  Diocese  or  State,  and  have  a  vote  in  the  choice  of 
a  Bishop.  It  also  declared,  in  explanation  of  the  Canon 
of  1808,  "that  the  provision  concerning  the  use  of  the 
Office  of  Institution  is  not  to  be  considered  as  apply- 
ing to  any  congregation  destitute  of  a  house  of  worship." 


236  LA  W  OF  THE  CHURCH. 

The  question  now  arises,  What  are  the  consequences 
which  follow  upon  institution?  What  rights  does  the 
instituted  Minister  acquire  by  this  act ;  and  what  rights 
do  the  Vestry  relinquish  ?  These  questions  have  been 
most  exhaustively  considered  by  Dr.  Hawks,  in  his 
work  on  "  C  nsiitutions  and  Canons  of  the  Church'" 
{pp.  280-87). 

First.  He  considers  that  the  instituted  Rector  can- 
not be  dismissed  from  his  charge  without  the  concur- 
rence of  the  Ecclesiastical  Authority  of  the  Diocese, 
nor  without  such  concurrence  leave  his  congregation 
against  their  will. 

Second.  That  such  Rector  has  exclusive  power  over 
the  church  edifice,  as  to  granting  or  refusing  its  use 
for  purposes  of  worship,  a  power  with  which  no  Vestry 
can  lawfully  interfere.  He  deduces  this  from  the  na- 
ture of  the  relation  which  the  Rector  bears  to  his  con- 
gregation, and  from  the  absolute  necessity  that  the 
Rector,  to  whom  the  duty  of  watching  over  the  souls 
of  his  congregation  as  one  that  must  give  account  is 
committed,  should  himself  teach  them  what  he  be- 
lieves to  be  the  truths  of  the  Gospel,  or  select  those 
who  may  teach  in  his  absence. 

The  Church,  recognizing  the  principle  thatthe  Rector 
is  under  a  sacred  obligation  in  this  matter,  has  ex- 
pressly legislated  that  he  shall  not  be  interfered  with 
in  the  discharge  of  his  functions  among  his  people  by 
any  brother  clergyman,  nor,  a  fortiori,  will  she  allow 
her  laity  to  interfere. 

TJiird.  He  next  examines  the  question  as  to  what, 
if  any,  are  the  rights  of  the  instituted  Rector  in  con- 
trolling the  use  of  the  church  at  other  times  and  for 
other  purposes  than  those  of  public   worship  on  ap- 


THE  RECTOR.  237 

pointed  days,  and  shows  most  conclusively,  arguing 
from  the  Institution  Office,  and  the  delivery  of  the 
keys  by  the  Warden  as  directed  therein,  that  the 
Church  intended  by  that  office,  and  by  the  delivery  of 
the  keys,  to  confer  the  exclusive  control  of  the  church 
at  all  times,  as  to  its  uses,  upon  the  instituted  Rector. 
This  he  deduces  from  the  close  resemblance  of  the 
American  "  Office  of  Institution "  to  the  English 
"  Office  of  Induction,"  and  the  common  purpose  ex- 
isting in  both  offices.  While  he  concedes  that  the 
patronages,  presentations,  etc.,  of  the  English  Law 
are  inapplicable  here,  he  shows  that  the  Church  obvi- 
ously designed  by  her  legislation  to  provide  as  good  a 
substitute  as  was  possible  under  the  circumstances,  for 
such  presentation,  etc.,  and  to  secure  to  the  Church 
such  advantages  as  were  consistent  with  our  political 
and  Ecclesiastical  condition.  After  showing  that  in 
England  the  ownership  of  the  Church  property  is  in 
the  patron,  until  in  due  form  he  divested  himself  of  such 
ownership,  and  as  no  such  patron  existed  here,  and  it 
being  necessary  that  the  estate  should  be  vested  some- 
where, therefore  the  expedient  of  Wardens  and  Ves- 
trymen as  trustees,  in  whom  the  estate  should  vest, 
was  resorted  to  ;  he  then  proceeds  to  trace  the  re- 
semblances between  the  two  offices. 

After  stating  that  in  England  the  ownership  of  the 
property  is  in  the  patron,  while  here  it  is  in  the  War- 
dens and  Vestry  (by  "Vestry"  obviously  meaning 
Vestrymen)  he  proceeds  as  follows  : 

"In  England  the  patron  selects  the  incumbent;  here 
the  Wardens  and  Vestry  invite  whomsoever  of  the 
Clergy  they  please. 

"In  England,  the  patron  presents;  here,  the  Wardens 


238  LA  IV  OF  THE  CHURCH. 

and  Vestry,  by  the  Law  of  the  Church,  are  required  to 
do  the  same  thing. 

"  In  England,  the  presentation  is  to  the  Bishop,  that 
he  may  ascertain  if  the  person  is  '  canonically  qualified.' 
Here  the  Wardens  and  Vestry  are  required  to  present 
to  the  Bishop  the  Minister  whom  they  elect,  in  order 
that  he  may  be  satisfied  that  'he  is  a  qualified  Minister 
of  this  Church.' 

"  In  England,  the  Bishop,  being  satisfied,  sends  to  a 
proper  person  his  mandate  for  induction;  here  the 
Bishop  may  do  the  same  thing. 

"  In  England,  the  ceremony  of  induction  consists  of 
corporal  investiture,  a  solemn  delivery  of  the  church 
edifice  to  the  incumbent,  by  the  significant  token  of 
placing  his  hand  on  the  key  of  the  door;  here,  the  cere- 
mony of  institution  is  marked  by  the  equally  significant 
act  of  the  public  delivery  of  the  keys  of  the  church,  by 
one  of  the  corporation,  in  the  name  and  on  behalf  of 
the  whole  Church. 

"  These  resemblances  surely  are  not  the  result  of 
accident.  They  were  designed,  and  as  the  cere- 
mony of  induction  in  England  was  known  to  give 
two  things  to  the  Clergyman,  viz.,  a  right  to  the  reve- 
nues of  the  living,  and  an  uncontrolled  ownership  over 
the  building  for  the  time  being,  is  it  an  unreasonable 
opinion  that  the  Church  here,  by  its  legislation,  meant 
to  do  as  much  of  the  same  things  as  the  circumstances 
of  the  country  would  permit;  and  that,  as  she  could 
grant  no  revenues,  she  meant  by  conferring  the  control 
of  the  edifice,  to  do  the  only  other  act  which  gave  any 
significancy  to  the  ceremony  she  had  framed  as  analo- 
gous to  an  English  induction  ?  We  cannot,  therefore, 
but  believe  that  the  Church  meant  by  the  delivery  of 


THE  RECTOR.  239 

the  keys  to  confer  the  exclusive  control  of  the  church, 
as  to  its  uses,  upon  the  Minister." 

As  Judge  Hoffman  well  says  {"Ecc.  Law"  p.  86),  it 
seems  impossible  to  deny  the  force  of  this  reasoning. 

It  has  also  been  fully  sustained  by  the  Courts.  In 
Humbert  v.  St.  Stephen's  Church  (i  Edwards'  Ch. 
Rep.  [TV.  F.],  308),  Vice-Chancellor  McCouen,  in  deliv- 
ering the  opinion  of  the  Court  as  to  the  meaning  of 
the  clause  in  the  Statute  giving  the  Vestry  power  "  to 
call  and  induct  a  Rector,"  says:  "  In  what  does  the  call 
and  induction  consist?  I  have  no  doubt  it  includes 
the  power  to  fix  the  salary,  as  well  as  to  make  a  con- 
tract with  the  Rector  and  deliver  him  possession  of  the 
Church.  The  call  and  induction  appear  to  be  substi- 
tutes for  what  is  known  in  the  Common  Law  as  the 
right  of  advowson  or  presentation  to  an  Ecclesiastical 
benefice  and  of  institution  and  induction.  The  first  be- 
longs to  the  founder  or  patron  of  the  Church;  the 
second  to  the  Bishop,  which,  according  to  Blackstone, 
'is  a  kind  of  investiture  of  the  spiritual  part  of  the 
benefice';  and  the  last  to  the  Church  Wardens  and 
Vestrymen,  which  is  a  giving  of  the  possession  or  an 
investiture  of  the  temporal  part,  as  institution  is  of  the 
spiritual." 

While  the  "  Office  of  Institution"  is  not  of  common 
use  in  the  American  Church,  the  neglect  to  use  it  being 
due  in  great  measure  to  the  fact  that  it  does  not  in- 
crease the  legal  status  of  the  Rector  of  a  Parish,  yet, 
in  my  judgment,  the  somewhat  extended  consideration 
herein  given  to  that  Office  was  necessary,  as  it  is 
the  solemn  setting  forth  of  the  mind  of  the  Churchy  as 
to  the  nature  of  the  relation  which  a  Rector  of  a  Parish 
sustains  to  the  Vestry  thereof,  and  as  to  the  extent  of 


240  LA  W  OF  THE  CHURCH. 

the  Rector's  power  over  the  Church  edifice.  The  Office 
confers  no  new  rights  upon  the  Rector,  it  is  simply 
declaratory  of  the  rights  which  he  already  possesses, 
and  which  are  inherent  in  his  office.  The  one  right 
which  it  most  emphatically  declares  as  belonging  to 
the  Rector  is  his  possession  of,  and  exclusive  control 
over,  the  church  edifice. 

IS   CALLED   FOR   LIFE. 

A  Minister  called  to  the  Rectorship  of  a  Parish,  in 
the  absence  of  any  express  agreement  limiting  the 
tenure  of  such  office,  is  called  for  life.  This  is  the 
undoubted  law  of  the  English  Church. — (Bum's  "Ecc. 
Law,"  Vol.  III.,/.  542;  Blunfs  "Book  of  Church  Law," 
p.  246;  Cripp  "s "  Lazv  of  the  Clergy"  p.  543.) 

"  By  both  the  Canon  and  the  Common  Law,  it  was 
well  settled  that  an  incumbent  once  duly  instituted 
was  in  for  life,  and  could  not  be  removed  by  the  patron. 
He  could  only  be  dismissed  upon  a  just  sentence.  The 
authority  of  Lord  Coke  as  to  the  Common  Law  is  fre- 
quently given." — {Hoffman's  "  Law  of  the  Church'' p. 

333) 
This   is   general    Ecclesiastical  Law.     This   is   also 

the  law  of  the  American  Church  {Canon  38,  Sec.  i., 
of  the  Digest),  and  has  been  so  declared  by  the  civil 
courts. 

In  Jennings,  etc.,  v.  Scarborough,  etc.  (56  N.J.  L.,  401), 
the  Court  held,  if  a  Minister  be  called  to  the  Rec- 
torship of  a  Parish,  and  the  call  be  without  limitation 
as  to  time,  "it  is  admitted  that  under  such  a  call  the 
tenure  is  for  life,  unless  terminated  by  mutual  consent, 
or  the  pastoral  relation  is  dissolved  as  provided  for 
in  the  Canons." 


THE  RECTOR.  241 

This  decision  expresses  the  well  settled  rule  of  law 
of  the  American  Church.  One  exception  to  this  other- 
wise universal  rule  of  law  should  be  noted. 

In  the  State  of  Maryland  it  has  been  decided 
{Bartlett  et  al.  v.  Htpkins,  j6  Md.,  5),  that  under 
the  Vestry  Act  of  that  State,  a  call  to  the  Rectorship 
of  a  Parish  containing  an  agreement  to  pay  a  certain 
yearly  salary  was  not  a  call  for  life,  and  that  such  call 
was  terminable  by  the  Vestry  at  the  end  of  any  such 
year. 

It  was  decided  in  the  same  case  that  Canon  4  of  Title 
II.  (now  Canon  38)  of  the  Constitution  and  Canons  of 
the  General  Convention  was  "  not  in  force  in  the  Diocese 
of  Maryland,  being  in  conflict  with  the  Act  of  Assem- 
bly of  1798,  Ch.  24,  incorporating  Vestries  of  the  Prot- 
estant Episcopal  Church." 

DISSOLUTION   OF   RECTORSHIP. 

Canon  38,  Section  i.,  of  the  Digest  provides  that  a 
Rector  canonically  elected  and  in  charge  cannot  resign 
his  Parish  without  the  consent  of  such  Parish  or  its 
Vestry  ;  nor  can  he  be  removed  therefrom  by  such  Par- 
ish or  Vestry  against  his  will,  except  in  the  manner  and 
by  the  authority  provided  for  in  the  Canons. 

Section  ii.  of  the  same  Canon  provides  that  in  case 
a  dissolution  of  the  pastoral  relation  between  a  Rector 
and  his  Parish  is  desired,  and  the  parties  are  not  agreed 
in  respect  thereto,  notice  of  such  desire  and  disagree- 
ment may  be  given  by  either  party  to  the  Ecclesiastical 
Authority  of  the  Diocese  in  writing.  And  in  case  the 
Bishop  of  the  Diocese  be  not  able  to  settle  the  differ- 
ence between  the  parties  satisfactorily,  or  in  case  he 


242  LA  W  OF  THE  CHURCH. 

decline  to  consider  the  matter  without  counsel,  "  the 
Bishop  (or,  if  the  Diocese  be  vacant,  any  Bishop  selected 
by  the  Ecclesiastical  Authority),  acting  with  the  advice 
and  counsel  of  the  Standing  Committee  of  the  Diocese 
or  Missionary  District,  shall  be  the  ultimate  arbiter 
and  judge.  While  the  Canon  declares  that  it  shall 
be  the  duty  of  both  the  Rector  and  the  Parish  to 
abide  by  the  judgment  of  the  Bishop,  it  fails  to 
provide  any  penalty  for  the  refusal  of  either  party 
to  abide  by  such  judgment,  leaving  the  penalty  to 
be  provided  by  the  several  Dioceses.  Very  few 
Dioceses  have  made  any  such  provision,  and  Section 
ii.  of  Canon  38  is  practically  incapable  of  enforce- 
ment. In  case  of  a  serious  disagreement  between 
a  Rector  and  his  Vestry,  there  is,  therefore,  under 
the  present  Canon,  no  authority  with  power  to  de- 
cree a  dissolution  of  the  pastoral  relation.  That 
neither  the  Rector  nor  the  Parish  nor  its  Vestry 
can  dissolve  the  pastoral  relation,  unless  both  parties 
mutually  agree  thereto,  (except  in  the  State  of  Mary- 
land, as  before  noted,  and  those  Dioceses  that  have 
made  provision  therefor),  will  not,  I  apprehend,  be 
seriously  questioned. 

This  question  was  thoroughly  considered  in  Youngs 
v.  Ransom  (31  Barb.,  49),  and  the  Court  held  that  "Mr. 
Ransom  was  not  called,  nor  did  he  agree  to  preach  for 
a  year,  or  for  any  specified  time,  nor  at  the  will  of  the 
Church  or  Vestry.  He  was  called  to  take  charge  of 
the  Parish  as  Rector,  and  settled  as  such.  It  is  not 
and  cannot  be  denied,  that  the  rule  or  regimen  of  the 
Episcopal  Church  as  to  the  tenure  of  its  Parish  Minis- 
ters is,  that  when  they  have  once  been  placed  in  charge 


THE  RECTOR.  243 

of  congregations  they  can  neither  leave  nor  be  dis- 
missed, except  by  mutual  consent,  without  the  inter- 
vention of  the  Bishop.  Without  discussing  the  power 
to  make,  or  the  propriety  of,  agreements  for  the  per- 
formance of  clerical  service  limited  in  time,  I  think  it 
is  very  clear  that  when  a  Minister  is  called  or  settled 
in  an  Episcopal  Parish  without  any  such  limitation,  he 
can  only  be  dismissed,  or  sever  the  connection,  by  mu- 
tual consent,  or  by  superior  Ecclesiastical  Authority, 
on  the  application  of  one  of  the  parties.  ...  I 
have  no  hesitation  in  the  conclusion  that  when  a  Min- 
ister is  called  to  and  settled  in  the  charge  of  a  Parish, 
unless  something  to  the  contrary  is  distinctly  ex- 
pressed in  the  call  and  settlement,  he  can  only  be  dis- 
missed without  his  consent  by  the  Bishop  of  the  Dio- 
cese." 

(To  the  same  effect  are  Batterson  v.  Thompson,  8 
Phil.  Rep.,  251;  Lyndv.  Menzies,  33  N.  J.  L.,  162 ;  Jen- 
nings v.  Scarborough,  $6  N.J.  Z.,401;  Avery  v.  Tyring- 
ham,  3  Mass.  Rep.,  160.) 

In  the  case  last  cited  the  Court  says  :  "  It  has  been 
the  uniform  opinion  of  all  the  judges  of  the  higher 
courts,  that  when  no  tenure  was  annexed  to  the  office 
of  Minister  by  the  terms  of  settlement,  he  did  not  hold 
his  office  at  will,  but  for  life,  determinable  for  some 
good  and  sufficient  cause,  or  by  the  consent  of  both 
parties." 

A  Vestry  cannot  indirectly  force  a  dissolution  of  the 
pastoral  relation  by  a  reduction  of  the  Rector's  salary. 

This  point  was  expressly  so  decided  in  Bird  v.  St. 
Mark's  Church  (62  Ioiva  Rep.,  567).  The  statement  of 
the  case  shows  that  the  Vestry  of  St.  Mark's  Church, 
Waterloo,  had,  by  resolution,  endeavored  to  reduce  the 


244  L^  w  OF  THE  CHURCH. 

salary  of  the  Rector  of  the  Parish,  in  order  to  compel 
him  to  consent  to  a  dissolution  of  the  pastoral  rela- 
tion. On  refusal  of  the  Vestry  to  pay  him  the  salary 
originally  promised  to  him,  the  Rev.  Mr.  Bird,  the  Rec- 
tor of  the  Parish,  brought  an  action  to  recover  the  sal- 
ary so  promised,  and  the  Court  held  that  "  It  was  not 
competent  for  the  Vestry  of  the  Parish,  in  violation  of 
the  Canons  of  the  Church,  to  dissolve  the  pastoral  re- 
lations against  the  plaintiff's  will.  These  Canons  be- 
come just  as  much  a  part  of  the  contract  of  employ- 
ment of  plaintiff  as  if  they  had  been  specifically  re- 
ferred to,  or  written  out  in  full  therein. 

"  The  salary  upon  which  the  plaintiff  was  employed 
constitutes  an  essential  part  of  the  contract.  If  the 
defendant  could  be  permitted  to  reduce  the  plaintiff's 
salary  without  his  consent,  it  could  force  him  to  agree 
to  a  dissolution  of  the  pastoral  relation,  and  thus  ac- 
complish indirectly  what  it  could  not  do  directly.  The 
right  to  the  salary  stipulated  at  the  time  the  plaintiff 
accepted  the  position  of  Rector  is  a  valuable  property 
right  secured  to  the  plaintiff  by  contract.  One  party 
cannot  ignore  its  provisions  or  violate  them  with  im- 
punity." 

The  courts  are  uniform  in  their  decisions  that  the 
livelihood  of  one  who  withdraws  himself  from  all  secu- 
lar pursuits,  and  devotes  his  life  to  the  sacred  work  of 
the  ministry,  "needs  special  protection,  and  ought  not 
to  be  dependent  for  a  livelihood  on  the  whims  and 
prejudices  of  his  congregation." 

It  has  been  well  said  that  no  description  of  men  un- 
der the  government  of  Jews,  Turks  or  pagans  would 
be  so  badly  off  as  would  the  Clergy  if  the  power  of 
dismission  lay  with  the  people. 


THE  RECTOR.  245 

It  has  ever  been  the  universal  rule  of  the  Church, 
that  there  should  be  no  severance  of  the  pastoral  rela- 
tion except  by  mutual  consent,  or  by  the  due  inter- 
vention of  the  Bishop  of  the  Diocese.  The  civil  courts 
have  also  recognized  that  there  was  a  "  nearness  and 
sacredness  of  tie  between  such  parties  as  admitted  not 
of  severance,  but  for  legal  offences  or  with  the  inter- 
vention of  grave  authority." 

The  eloquent  language  of  Lord  Stowell  {Evans  v. 
Evans,  1  Hag.  Cons.  Rep.,  35)  as  to  another  relation 
may  well  be  applied  here  :  "  When  people  understand 
that  they  must  live  together,  except  for  a  very  few  rea- 
sons known  to  the  law,  they  learn  to  soften  by  mutual 
accommodation  that  yoke  which  they  know  they  can- 
not shake  off;  they  become  good  husbands,  and  good 
wives,  from  the  necessity  of  remaining  husbands  and 
wives  ;  for  necessity  is  a  powerful  master  in  teaching 
the  duties  it  imposes." 

RIGHT   TO   A   HEARING   BEFORE   RECTORSHIP   CAN    BE 
TERMINATED. 

It  has  already  been  shown  that  the  Wardens  and 
Vestrymen  of  a  Parish  have  no  power  whatever  to 
dismiss  a  Rector  without  his  consent.  If  they  desire 
a  severance  of  the  pastoral  tie,  and  they  and  the  Rec- 
tor be  not  agreed  in  respect  thereto,  recourse  must  be 
had  to  the  Bishop  of  the  Diocese.  The  second  section 
of  Canon  38  of  the  Digest  provides  that  in  case  of  any 
such  difference  between  a  Rector  and  a  Vestry  or  Par- 
ish, which  may  not  be  satisfactorily  settled  by  the 
Bishop,  then  the  Bishop  "may  ask  the  advice  and 
consent  of  the  Standing  Committee  of  the  Diocese  or 
of  the  Council  of  Advice  of  the  Missionary  District, 


246  LA  W  OF  THE  CHURCH, 

and,  proceeding  with  its  aid  and  counsel,  shall  be  the 
ultimate  arbiter  and  judge."  The  judgment  of  the  Bish- 
op may  be  rendered  without  any  hearing  being  accorded 
to  the  Rector  or  to  the  Parish,  and  it  may  be  for  this  rea- 
son that  the  Canon  inflicts  no  penalty  on  the  parties  in 
case  of  a  refusal  to  abide  by  such  judgment,  leaving  to 
the  several  Dioceses  to  provide  the  penalty  for  such  re- 
fusal and  what  further  proceedings  shall  then  be  taken. 
Section  iv.  of  the  same  Canon  provides  that  this 
Canon  shall  not  apply  in  any  Diocese  which  has  made, 
or  shall  hereafter  make,  provision  by  Canon  upon  this 
subject,  nor  in  contravention  of  any  right  of  any  Rector 
or  Parish,  under  the  law  of  the  civil  authority. 

But  few  Dioceses  have  legislated  upon  this  subject, 
and  the  Canons  of  such  Dioceses  relating  thereto  arc- 
not  so  materially  variant  from  Canon  38  of  the  Digest 
as  to  require  separate  consideration. 

While  the  Bishop  is  the  ultimate  arbiter  and  judge 
in  all  cases  of  disagreement  between  a  Rector  and  a 
Vestry  or  Parish,  and  can  issue  an  order  terminating 
the  pastoral  relation  between  the  parties,  he  cannot 
issue  such  order,  or  subject  such  Rector  to  a  penalty, 
upon  any  ex  parte  statements,  or  without  affording  him 
an  opportunity  to  be  heard  in  his  own  behalf.  The 
rule  is  well  stated  by  Judge  Hoffman  ("  Ecc.  Lata," 
pp.  269,  270).  In  considering  the  question  of  the  dis- 
missal of  Ministers  he  says :  "  When  the  sanction  of  the 
Ecclesiastical  Authority  is  sought,  a  duty  is  imposed, 
as  well  as  a  power  conferred.  It  cannot  concur  on  any 
ex  parte  statements,  or  without  an  examination.  The 
right  to  be  heard  is  a  Common  Law  right,  and  must  be 
observed,  before  any  penalty  of  any  description  can  be 
lawfully  inflicted. 


THE  RECTOR.  247 

"  If  the  consequence  of  a  dismission  with  concur- 
rence is  to  dissolve  and  discharge  the  civil  rela- 
tions and  contracts  of  the  parties,  it  can  only  be  so 
permitted  when  the  essential  rules  of  the  law  are  ob- 
served. A  competent  authority  to  hear  and  decide — 
a  proper  reasonable  notice  of  the  matters  objected  to 
— an  opportunity  to  meet  and  reply  to  them,  are  funda- 
mental." 

The  right  of  the  Rector  to  be  heard  in  his  own  de- 
fence was  strongly  affirmed  by  the  Supreme  Court  of 
New  Jersey,  in  the  important  case  of  Jennings  v.  Scar- 
borjugh  et  al.  (56  N.  J.  L.  R.,  401). 

From  the  statement  of  the  case,  it  appears  that  one 
Jennings,  a  regularly  ordained  Minister  of  the  Church, 
was  canonically  transferred  to  the  Diocese  of  New  Jer- 
sey, in  May,  1889,  and  called  to  the  Rectorship  of 
Grace  Church,  Westfield,  N.  J.,  September  29,  1890. 
Dissensions  having  arisen  in  the  Church,  the  Bishop,  on 
February  27,  1893,  made  the  following  order: 

"  I.  The  Rev.  J.  B.  Jennings  shall  cease  to  be  Rector 
of  the  Parish  of  Grace  Church,  Westfield,  on  March  15, 
1893.  II.  The  Parish  of  Grace  Church,  Westfield, 
shall  pay  to  the  Rev.  J.  B.  Jennings  all  arrears  of  salary 
due  at  that  time." 

The  purport  and  effect  of  this  order  was  to  dissolve 
the  pastoral  relation  of  the  said  Jennings  with  his  Par- 
ish. The  proceedings,  of  which  this  order  was  the  out- 
come, were  instituted  by  a  petition  dated  February  I, 
1893,  and  signed  by  all  the  persons  who  at  that  time 
were  Wardens  and  Vestrymen  of  the  Church  ;  it  was 
addressed  to  the  Bishop  of  the  Diocese,  and  asked  for 
a  dissolution  of  the  pastoral  tie  existing  between  the 
Parish  and  its  Rector,  Jennings,  in  accordance  with 


248  LA  W  OF  THE  CHURCH. 

Title  III.,  Canon  4,  of  the  Constitution  and  Canons  of 
the  Diocese. 

Section  i.  of  this  Canon  provides  that  in  case  of  a  seri- 
ous difference  between  the  Rector  of  any  Church  and 
the  congregation  thereof,  it  shall  be  lawful  for  a  ma- 
jority of  the  Vestry  to  make  a  representation  to  the 
Bishop  of  the  facts  in  the  case,  and  agreeing-  to  submit 
to  his  decision  in  the  matter;  they  shall  at  the  same 
time  serve  a  copy  of  the  representation  on  the  Rector. 

Section  ii.  makes  it  the  duty  of  the  Bishop  to  seek  to 
bring  the  parties  to  an  amicable  conclusion  in  the  mat- 
ter. 

Section  iii.  provides  that  if  the  matter  be  not  ami- 
cably settled,  then  the  Bishop  shall  convene  the  Stand- 
ing Committee,  and  shall  give  notice  to  the  parties  to 
appear  and  present  their  proofs  at  such  time  and  place 
as  he  may  appoint. 

Section  iv.  provides  that  the  Bishop,  with  the  advice 
and  concurrence  of  the  majority  of  the  members  of  the 
Standing  Committee  who  shall  have  been  present  at 
the  hearing,  shall  make  such  order  as  he  may  deem  best 
for  the  true  interests  of  the  Church. 

Section  v.  provides  that  if  any  agreement  made  under 
Section  ii.,  or  any  order  made  under  Section  iv.,  of  this 
Canon  be  disregarded,  the  Bishop  may  convene  the 
Standing  Committee,  and  after  hearing  such  further 
proofs  and  arguments  as  may  be  presented  to  him, 
make  such  further  order  as  he  may  think  proper,  which 
order  shall  have  the  same  effect  as  an  order  made  un- 
der Section  iv.  of  the  Canon. 

Upon  the  presentation  of  the  petition  of  the  War- 
dens and  Vestrymen,  the  Bishop,  as  it  would  appear 
from  the  statement  of  the  case,  without  notice  or  hear- 


THE  RECTOR.  249 

ing  the  said  Jennings  or  his  proofs,  and  without  con- 
vening the  Standing  Committee,  made  an  order  dated 
February  4,  1893,  containing  his  decision  that  Mr.  Jen- 
nings should  cease  to  be  the  Rector  of  this  Church,  on 
and  after  February  15,  1893,  and  that  the  Wardens  and 
Vestrymen  of  the  Church  should  pay  Mr.  Jennings  all 
a;  rears  of  salary  up  to  that  date. 

This  order  of  February  4,  1893,  "  which,"  the  Court 
says,  "is  properly  referable  to  the  2d  section  of  the 
Canon  as  an  effort  to  obtain  an  amicable  conclusion  of 
the  differences  between  the  parties,"  was,  with  a  copy 
of  the  petition,  transmitted  to  Jennings,  by  the  Bishop. 

In  a  letter  to  the  Bishop  dated  February  10,  1893, 
Mr.  Jennings  declined  to  accede  to  the  Bishop's  order, 
and  asked  that  if  the  case  must  go  to  the  Standing  Com- 
mittee, to  let  it  be  done  in  accordance  with  the  Canon, 
and  that  he  did  not  believe  the  Bishop's  order  received 
by  him  was  in  accordance  with  Title  III.,  Canon  4, 
Section  iv. 

The  Bishop  then  called  a  meeting  of  the  Standing 
Committee  under  Section  v.  of  the  Canon,  and  sent  a 
notice  to  Mr.  Jennings  that  he  had  called  a  meeting  of 
the  Standing  Committee  under  the  said  section. 

At  the  meeting  of  the  Standing  Committee  thus 
called,  Mr.  Jennings  was  present,  but  no  proofs  were 
presented.  Nor  was  he,  in  the  opinion  of  the  Court, 
accorded  a  hearing  as  provided  for  in  the  Canon.  After 
hearing  the  statement  of  the  Vestry  of  the  Church,  and 
the  statement  of  Mr.  Jennings,  the  Bishop  made  an 
order  that  Mr.  Jennings  should  cease  to  be  Rector  on 
March  15,  1893  The  case  came  before  the  Supreme 
Court  on  a  writ  of  certiorari. 

The  Court  in  delivering  their  opinion  said  :   "  The 


250  LAW  OF  THE  CHURCH. 

Bishop's  order  of  February  4,  not  having  resulted  in  an 
agreement  between  the  parties,  the  procedure  to  dis- 
solve the  pastoral  relation  in  invito,  should  have  been 
under  Sections  iii.  and  iv.  of  the  Canon  and  not  under 
Section  v. 

"  There  is  a  distinction  of  great  importance  between 
the  procedure  prescribed  by  Section  iii.,  and  proceeding 
under  Section  v.  .  .  .  Sections  iii.  and  iv.  constitute 
a  tribunal  consisting  of  the  Bishop  and  the  Standing 
Committee  for  the  hearing  of  proofs  and  arguments 
presented  before  it.  After  such  hearing  is  concluded, 
the  Bishop  may  make  such  an  order  in  rogard  to  the 
matter  as  he  may  think  to  be  just  and  for  the  true  in- 
terests of  the  Church,  provided  the  same  receives  the 
concurrence  of  a  majority  of  the  Standing  Committee 
present  at  the  hearing.  .  .  .  The  provision  under 
Section  v.  is  by  way  of  an  appeal  from  an  order  made 
under  some  one  of  the  preceding  sections." 

After  showing  that  the  notice  to  the  Vestry  of  the 
Church,  and  to  Mr.  Jennings,  stated  that  the  Standing 
Committee  was  summoned  under  the  provisions  of 
Section  v.  of  the  Canon,  the  Court  said :  "  We 
think  the  prosecutor  [Jennings]  was  not  entitled  to 
be  represented  by  counsel  at  the  hearing,  but  that  he 
was  entitled  as  of  right  to  a  hearing  before  the  com- 
mittee, pursuant  to  Sections  iii.  and  iv.  of  the  Canon, 
especially  as  the  result  of  the  deliberations  of  that 
tribunal  might  deprive  him  of  property  rights,  which, 
under  the  general  Canons  of  the  Church,  inured  to 
him  in  virtue  of  his  rectorship.  .  .  .  Courts  of  law 
will  not  interfere  to  control  the  proceedings  of  Eccle- 
siastical bodies  in  spiritual  matters  which  do  not  affect 
the  civil  rights  of  individuals,  nor  will  they  interfere 


THE  RECTOR.  251 

with  the  action  of  the  duly  constituted  authorities  of 
religious  societies  in  matters  purely  discretionary. 
{Livingston  v.  Trinity  Church,  16  Vroom,  230.) 
But  where,  as  in  the  present  case,  the  civil  rights  of 
an  individual  are  involved,  jurisdiction  is  committed 
to  the  courts  of  law  to  protect  those  rights,  which  the 
Court  cannot  discard.  ...  As  already  appears,  the 
course  of  procedure  for  dissolving  the  pastoral  relation 
of  the  Rector  with  his  Parish  is,  by  the  Canons  of  the 
Episcopal  Church,  specially  prescribed.  An  order  dis- 
solving that  relation,  not  made  in  conformity  with  the 
Canons,  is  coram  non  judice. 

"  Nor  is  there,  by  the  law  of  the  Episcopal  Church, 
another  tribunal  to  which  an  appeal  may  be  made. 
.  .  .  With  respect  to  the  judgment  that  shall  be 
pronounced  by  the  Bishop  with  the  concurrence  of  the 
committee,  after  a  hearing,  the  authority  of  the  Bishop 
is  discretionary  and  supreme.  The  prosecutor  [Jen- 
nings] is  an  ordained  Minister  of  the  Church,  is  sub- 
ject to  the  laws  of  the  Church  and  to  its  constituted 
authorities,  but  at  the  same  time  he  is  entitled  to  a 
hearing  in  compliance  with  the  laws  of  the  Church  be- 
fore judgment  is  pronounced.  The  proceedings  on 
which  the  order  in  question  was  made  are  not  in  com- 
pliance with  the  Canons  of  the  Church,  and  for  this 
reason  the  order  should  be  set  aside." 

This  decision  clearly  establishes  the  right  of  a  Rec- 
tor to  be  heard  in  his  own  defence,  before  he  can  be 
subjected  to  any  penalty  or  deprived  of  any  right. 

The  maxim  of  law  that  every  man  is  presumed  to  be 
innocent  until  he  is  proved  guilty,  applies  with  special 
force  to  a  clergyman. 

Canon  24,  Section  i.,  of  the  Digest  enumerates  the 


252  LA  W  OF   THE  CHURCH. 

offences  for  which  Ministers  may  be  tried  and  punished. 

Unfortunately,  as  it  seems  to  the  author,  the  mode 
of  procedure  in  the  trial  of  a  clergyman,  other  than  a 
Bishop,  is  left  to  the  regulation  of  the  respective  Dio- 
ceses. Article  IX.  of  the  Constitution  merely  provides 
that  Presbyters  and  Deacons  shall  be  tried  by  a  Court 
instituted  by  the  Convention  of  the  Diocese  in  which 
they  are  canonically  resident.  While  Canon  24,  Sec- 
tion i.,  directs  that  in  case  of  a  Clergyman  "being 
found  guilty,  he  shall  be  admonished,  suspended,  or 
deposed  from  the  Ministry,  as  shall  be  adjudged  by  the 
Trial  Court.''  Provision  is  made  for  an  appeal  to  the 
Court  of  Review,  but  the  powers  of  that  Court  are 
extremely  limited  in  all  cases  involving  any  question 
of  doctrine,  faith,  or  worship. 

Accordingly,  the  methods  of  presenting  an  offend- 
ing Clergyman,  or  of  bringing  a  complaint  against  him, 
as  well  as  the  methods  of  conducting  the  trial,  adopted 
in  the  various  Dioceses,  vary  in  detail  and  sometimes 
in  principle.  As  the  consideration  of  this  subject  does 
not  properly  fall  within  the  scope  of  this  work,  refer- 
ence to  these  varying  details  and  principles  is  un- 
necessary. 

I  have  already  said  that,  in  my  judgment,  the  mode 
of  procedure  in  the  trial  of  a  clergyman  is  tinfortunately 
left  to  the  regulation  of  the  respective  Dioceses. 

I  call  it  unfortunate,  because  it  renders  the  depart- 
ment of  the  Judiciary  the  weakest  and  most  defective 
part  of  our  whole  Ecclesiastical  system,  in  fact  deprives 
the  Church  of  any  judicial  system  having  aught  of 
practical  value. 

Uniformity  of  judicial  proceeding,  judicial  interpre- 
tation, and  judicial  decision,  so  vitally  important  to  the 


THE  RECTOR.  s53 

peace  and  prosperity  of  the  Church,  are  impossible  of 
attainment  under  our  present  Constitution  and  Can- 
ons. If  the  members  of  the  American  branch  of  the 
Catholic  Church  are  to  be  kept  together  with  one 
mind  and  one  heart,  in  her  various  Diocesan  parts, 
then  must  the  Church  supply  the  need  of  clergy  and 
people  alike,  a  settled  court  of  justice. 

To-day,  a  rubric  or  Canon  of  the  Church  may  receive 
one  interpretation  in  one  Diocese  and  a  contrary  inter- 
pretation in  another.  In  the  one  Diocese,  under  one 
interpretation  of  some  rubric  or  Canon  of  the  Church, 
a  Clergyman  may  be  convicted  and  punished  for  a  vio- 
lation of  such  rubric  or  Canon.  Convicted  in  the  one 
Diocese,  he  knows  that  in  the  other  he  would  be  ac- 
quitted of  the  same  offence.  Doubting,  as  he  well 
might,  the  propriety,  if  not  the  legality  of  the  punish- 
ment inflicted  upon  him,  he  would  fain  appeal  to  some 
tribunal  competent  to  decide  between  these  conflict- 
ing interpretations,  but  the  Church  has  no  final  tribu- 
nal to  which  such  an  appeal  can  be  made  concerning 
any  question  of  doctrine,  or  faith,  or  worship. 

The  Courts  of  Review,  established  in  1904,  to  hear 
and  determine  appeals  from  decisions  of  Trial  Courts, 
have  no  powers,  under  the  proviso  of  Canon  30,  Section 
v.,  to  determine  any  question  wherein  the  doctrine,  or 
faith,  or  worship  of  the  Church  is  involved,  "  until  after 
the  establishment  of  an  ultimate  Court  of  Appeal."  They 
presuppose,  and  depend  for  their  efficiency,  on  a  Court  of 
Appeal  as  permitted  by  Article  IX.  of  the  Constitution. 

These  two  things,  the  Church,  in  my  judgment,  sadly 
needs  to-day,  a  uniform  mode  of  procedure  for  the  con- 
stituting of  courts  and  the  conducting  of  trials  in  every 
Diocese,  and  a  "  Court  of  Appeals,  with  power  authori- 


254  LAW  OF  THE  CHURCH. 

tatively  and  finally  to  settle  the  true  interpretation  of 
Constitutions  and  Canons,  ut  sit  finis  litium." 

THE  RECTOR  AN  INTEGRAL  PART  OF  THE  VESTRY. 

It  has  already  been  shown  that  the  Vestry  is  com- 
posed of  three  integral  parts — the  Rector,  the  Wardens, 
and  the  Vestrymen ;  and  that  each  part  personally,  as  in 
the  case  of  the  Rector,  or  by  representation,  as  in  the 
case  of  the  Wardens  and  Vestrymen,  must  attend,  to 
constitute  a  legal  meeting  of  the  Vestry.  This  is  the 
law  of  the  Church,  except  in  such  States  or  Dioceses 
where  the  Statute  or  Canon  Law  provides  otherwise. 
These  exceptions  have  already  been  sufficiently  noted 
in  the  chapter  relating  to  "  The  Vestry." 

RIGHT  TO  CALL  PARISH  AND  VESTRY  MEETINGS. 

The  Rector  has  the  right,  in  the  first  instance,  to 
call  all  meetings  of  the  Parish  and  Vestry.  In  some 
Dioceses,  as  already  noted,  this  right  is  shared  by  the 
Wardens,  and  in  a  few  Dioceses  by  a  certain  specified 
number  of  the  Vestrymen.  It  may  also  be  said  that  it 
is  not  only  the  right,  but  the  duty,  of  the  Rector  to  call 
such  meetings  when  necessary. 

In  many  of  the  Dioceses,  the  Canon  Law,  or  the  law 
of  the  State,  provides  that  the  Rector  "shall  call" 
meetings  of  the  Vestry,  and,  in  some  cases,  special 
meetings  of  the  Parish,  when  so  requested  by  the  War- 
dens, or  a  certain  number  of  the  Vestrymen,  or  both. 
The  courts  have  held  that  when  the  law  so  provides,  a 
writ  of  mandamus  will  lie  to  compel  him  to  call  a  meet- 
ing when  so  requested. 

(For  a  fuller  discussion  of  this  subject,  see  Chapter 
IV.) 


THE  RECTOR.  255 

PRESIDING  OFFICER   AT  PARISH  AND  VESTRY 
MEETINGS. 

It  may  be  stated  as  a  rule  with  but  very  few  excep- 
tions, that  the  Rector,  when  present,  presides  at  all 
meetings  of  the  Parish,  and  of  the  Vestry. 

From  the  earliest  times  of  the  Christian  Church  the 
Rector  of  the  Parish,  virtute  officii,  presided  at  all  meet- 
ings thereof.  The  very  word  Rector  implies  govern- 
ing in  matters  concerning  the  Parish.  The  courts 
have  decided  that  the  right  of  a  Rector  to  preside 
at  such  meetings  is  a  "Common  Law  right,"  he  being 
"  the  functionary  who  is  at  the  head  of  the  Parish  for 
all  Ecclesiastical  purposes." 

RIGHT  TO  VOTE  AND  GIVE  THE  CASTING  VOTE  IN 
CASE  OF  A  TIE. 

The  Rector  has  a  Common  Law  right  to  vote  at  all 
Parish  meetings.  "  He  has  a  right  of  sitting  from  his 
freehold  in  the  church." — {Baker  &  Downing  v.  Wood, 
1  Cur  ten'  Rep.,  507.) 

The  Rector  has  also  the  right  to  vote  upon  all  ques- 
tions presented  at  a  Vestry  meeting.  He  also  has  the 
right  to  a  casting  vote  in  case  of  a  tie,  except  in  those 
Dioceses  where  the  Statute  or  Canon  Law  expressly 
deprives  him  of  that  right. — {People  v.  Rector,  etc., 
48  Barb.  [N.  K],  603;  R.  v.  DOyly,  12  Adolp.  &  Ellis, 
139;  Blunt' s  u  Book  of  Church  Law"  p.  302.) 

(For  exceptions  to  this  rule,  see  discussion  of  this 
question  in  the  preceding  chapter.) 

Except  in  those  Dioceses  where  the  Statute  or  Canon 
Law  provides  otherwise,  the  Rector  when  present  has 
the  right  to  decide  all  questions  relating  to  the  quali- 
fications of  voters,  at  all  meetings  of  the  Parish.     The 


256  LA  W  OF  THE  CHURCH. 

right  of  presiding  involves  also  the  right  of  deciding 
upon  the  qualifications  of  voters. — {Hoffman's  "Law 
of  the  Church"  p.  244;  Blunfs  "  Book  of Church  Law" 
p.  302;  Hoffman  s  "  Ecc.  Latv"  p.  66.) 

RIGHT   TO   THE   KEYS   AND   CONTROL  OF  THE 
CHURCH   BUILDINGS. 

The  Rector  of  a  Parish  has  the  exclusive  right  to  the 
keys  of  the  church.  He  also  has  possession  of  and  ex- 
clusive control  over  the  church  edifice  and  all  other 
Parish  buildings  used  for  Ecclesiastical  purposes.  The 
law  of  the  English  Church  on  this  subject  is  well  stated 
by  Blunt  in  his  "Book  of  Church  Lazv"  {page  273,  jth 
Ed.).  He  says:  "The  whole  church  and  churchyard 
being  vested  in  the  Rector  or  Vicar,  as  his  freehold,  ac- 
cess to  either  is  entirely  under  his  control.  He  alone 
has  any  legal  right  to  the  keys  of  the  churchyard,  bel- 
fry, nave,  vestry  and  chancel  ;  and  no  one  can  legally 
use  them  for  entrance  thereto,  except  by  his  permis- 
sion. '  The  Minister,'  said  Sir  John  Nicholl,  '  has,  in 
the  first  instance,  the  right  to  the  possession  of  the  key, 
and  the  Church  Wardens  have  only  the  custody  of  the 
church  under  him.  If  the  Minister  refuses  access  to 
the  church  on  fitting  occasions,  he  will  be  set  right  on 
application  and  complaint  to  higher  authorities.' " — 
{Lee  v.  Matthews,  3  Hagg.Ecc,  169.) 

In  another  place  he  says  {Idem,  pp.  322,  323) :  "  The 
site  and  fabric  of  the  church,  with  all  that  is  perma- 
nently attached  to  that  fabric,  are  thus,  in  the  eye  of 
the  law,  the  property  of  the  incumbent  for  the  time 
being.  The  rights  thus  acquired  carry  with  them  the 
exclusive  right  of  access  to  the  church,  and  also  (sav- 
ing any  established  right  of  way)  to  the  churchyard  ; 


THE  RECTOR.  257 

so  that  none  can  lawfully  exclude  him  from  any  part  of 
them,  nor  any  enter  them  of  their  own  right,  but  only 
by  his  permission,  so  long  as  he  is  incumbent.  When 
he  is  inducted,  the  keys  of  the  church  are  assigned  to 
him,  by  the  ceremony  of  laying  his  hand  upon  some  of 
them,  and  all  of  them  are  henceforth  his  property." — 
{Redhead  v.  Wait  et  a/.,  6  Law  Times  \_N.  5.],  580; 
Marshall  v.  Andrew,  Ecc.  Gas.,  Aug.,  1871  ;  Harward 
v.Arden,  Ecc.  Gas.,  1867  ;  Ritchins  v.  Cording ly,  Law 
Rep.,  3  A  dm.  and  Ecc,  113  ;  Sir  R.  Pltillimores  "  Ecc. 
Judg."  p.  134  ;  Dewdnyv.  Good  ct  al.,  jjur.  [N.  S.]  637.) 

In  the  case  last  cited  the  Court  held  that  "the 
church  is  the  Rector's  freehold  The  key  of  the 
church  is  the  property  of  the  Rector,  as  was  long  ago 
decided  by  Lord  Stowell,  and  must  be  delivered  up  by 
the  Church  Wardens." 

This  is  unquestionably  the  English  Law  on  the  sub- 
ject. It  is  also  the  general  Ecclesiastical  Law,  and  the 
Law  of  the  American  Church  to-day.  The  mind  of  the 
Church  on  this  subject,  as  shown  in  the  earlier  part  of 
this  chapter,  is  plainly  evidenced  in  the  "  Office  of  In- 
stitution," which  she  set  forth  as  the  best  substitute 
that  circumstances  would  permit  for  the  ceremonies  of 
presentation,  institution  and  induction  of  the  English 
Church. 

This  Office  is  analogous  to  the  English  "  Office  of 
Induction,"  and  the  Church,  in  so  framing  it,  intended 
thereby  to  confer  upon  her  Ministers  all  the  advan- 
tages and  rights  granted  by  the  English  Office,  so  far  as 
the  circumstances  of  the  country  would  permit;  and  by 
the  formal  delivery  of  the  keys,  as  provided  for  in  that 
Office,  she  intended  to  confer  the  exclusive  control  of 
the  church,  as  to  its  uses,  upon  the  Rector  thereof. 


258  LA  W  OF  THE  CHURCH. 

The  courts  have  held  that  the  American  "  Office  of 
Induction,"  which,  as  we  have  shown,  is  identical  with 
the  present  "  Office  of  Institution,"  was  intended  by 
the  Church  as  a  substitute  for  the  English  "Office  of 
Induction,"  and  that  she  intended  therein  to  confer,  so 
far  as  was  possible,  the  same  rights  upon  a  Rector  that 
are  conferred  by  the  English  office. — (See  Humbert  v. 
St.  Stephens  Church,  i  Edzvard's  Ch.  Rep.,  308.) 

In  the  "Office  of  Institution,"  the  Church  re- 
quires the  chosen  representative  of  the  Wardens  and 
Vestrymen,  in  whom,  when  there  is  no  Rector,  is 
vested  the  fee  and  the  control  of  the  church  edifice,  to 

say :    "  In  the  name  and  behalf  of  Parish   {or 

Church),  I  do  receive  and  acknowledge  you,  the  Rev. 

,  as  Priest  and  Rector  {or  Assistant  Minister)  of 

the  same  ;  and,  in  token  thereof,  give  into  your  hands 
the  keys  of  this  church." 

This  formal  presentation  of  the  keys  is  an  act  of  the 
deepest  significance.  They  are  given  absolutely, 
without  any  reservation  whatever,  either  express  or 
implied,  to  the  Rector,  by  the  Trustees  of  the  property. 
And  in  receiving  the  keys  of  the  church,  the  Rector 
receives  the  power  of  exclusive  control  over  the 
church — "  the  power  of  entrance,  occupancy  and  con- 
trol, of  opening  and  shutting.  Where  is  there  any 
power  to  take  them  back,  or  to  impose  any  limitation 
upon  their  use?  If  there  is  any  existing  limitation  to 
this  grant  of  power,  if  there  are  any  parts  of  the  build- 
ing which  he  cannot  enter  and  control  at  will,  the 
whole  solemnity  is  travestied  in  this  act  of  delivering 
the  keys." — (Bishop  Wilmer's  Decision  in  the  Case  of 
Rector v.  Vestry  of  St.  John's  Church,  Mobile,  A  la.,  p.  y6.) 

While  there  can  be  no  doubt  about   the  propriety 


THE  RECTOR.  259 

and  advisability  of  using  the  "Office  of  Institution" 
throughout  the  Church,  it  is  to  be  remembered  that 
this  Office  confers  no  powers  upon  the  Rector  not  al- 
ready possessed  by  him  before  Institution,  it  is  only 
declaratory  of  those  powers.  The  delivery  of  the  keys 
to  the  Rector  is  a  token  of  acknowledgment  by  the 
Vestry  of  the  Parish  or  Church,  that  they  have  re- 
ceived him  as  their  Priest  and  Rector,  and  a  formal 
recognition  of  his  right,  virtnte  officii,  to  the  exclusive 
control  of  the  church  buildings.  Judge  Hoffman 
("Law  of  the  Church" p.  293),  in  commenting  on  the 
effect  of  the  "  Institution  Office  "  upon  the  contracts 
between  Vestries  and  Rectors,  states  certain  results, 
which  he  says  "  are  deducible  upon  the  whole  matter.'* 
Among  these  are  the  following  :  "  That  the  Institu- 
tion Office  is  not  essential  to  give  to  a  Minister  any 
right  to  the  emoluments  attending  the  cure  ;  but  such 
(in  the  absence  of  express  stipulation)  are  as  recover- 
able in  the  civil  tribunals  without  as  with  it. 

"  Neither  is  it  necessary,  in  order  to  vest  the  incum- 
bent with  that  use  of,  and  power  over,  the  church 
building  and  precincts  which  is  attendant  upon  his 
office,  and  requisite  for  its  proper  performance  ;  that 
what  such  power  is,  may  be  ascertained  from  the  law 
of  the  Church,  judicial  decisions,  and  the  reason  of  the 
thing — that  the  delivery  of  the  keys  has  no  more  legal 
effect  upon  this  question  than  the  call  and  an  occupa- 
tion pursuant  to  it." — (See  Idem,  p.  265.) 

He  also  states  ("  Ecc.  Law,"  p.  86)"  that  the  call,  ac- 
ceptance and  entering  upon  the  duties  of  a  Rector 
(without  any  special  restrictions  agreed  upon),  as  fully 
establishes  the  relation  between  a  Rector  and  the  Par- 
ish as  the  Institution  Office  does.'* 


260  LA  W  OF  THE  CHURCH. 

The  courts  have  uniformly  adopted  this  view. 

In  Youngs  v.  Ransom  (31  Barb.,  49)  the  Supreme 
Court  of  the  State  of  New  York  cited  and  approved 
the  opinion  expressed  by  Judge  Hoffman,  regarding 
the  use  of  the  Institution  Office,  as  above  cited 
{"Law  of  the  Church"  p.  293).  Justice  Emmott,  in 
delivering  the  opinion  of  the  Court,  said  :  "  Upon  a 
careful  consideration  of  Judge  Hoffman's  argument  and 
of  his  authorities,  I  entirely  concur  in  his  views  of  the 
effect  of  the  use  or  neglect  of  this  particular  service." 

The  conclusions  of  Judge  Hoffman,  that  the  control 
and  possession  of  the  church  edifice  appertains  exclu- 
sively to  the  Rector,  and  also  the  English  Ecclesiasti- 
cal Law  on  this  subject,  were  cited  and  approved  in 
the  important  case  of  Lynd  v.  Menzies  et  al.  (33  N.J. 
L.  Rep.,  162).  This  was  an  action  on  the  case  for  for- 
cibly preventing  the  Rev.  William  J.  Lynd,  Rector  of 
St.  Barnabas'  Church  in  the  city  of  Newark,  N.  J., 
from  preaching  in  the  church,  and  occupying  the  paro- 
chial school-house. 

In  the  statement  of  the  case  it  appears  that  the 
Rev.  Mr.  Lynd  accepted  a  call  to  the  rectorship  of  the 
Parish  in  December,  1861,  and  in  the  month  of  June, 
1862,  was  duly  instituted.  On  the  27th  of  April,  1867, 
he  received  a  note  from  the  two  Wardens  of  the 
Church,  notifying  him  that  on  Easter  Day,  which  was 
then  past,  his  connection  as  Rector  of  the  Church 
had  ceased.  On  the  next  day,  which  was  Sunday, 
when  he  went  to  the  church  to  officiate,  he  found  the 
church  closed,  and  the  doors  so  fastened  as  to  prevent 
his  entering.  In  a  few  days  afterward  he  was  in  a 
similar  manner  excluded  from  the  parochial  school- 
house.     It  was  proved,  on  the  trial  of  the  case,  that 


THE  RECTOR.  261 

such  expulsions  were  the  acts  of  the  Wardens  and 
Vestrymen  of  the  Church.  The  jury  returned  a  ver- 
dict in  favor  of  the  Rector,  for  one  thousand  dollars. 
The  case  came  before  the  Supreme  Court  on  a  motion 
for  a  new  trial.  Chief-Justice  Beasley,  in  delivering 
the  opinion  of  the  Court,  says:  "What,  then,  is  the 
agreement  into  which  a  congregation  of  this  denomi- 
nation of  Christians  enters  upon  the  call  of  a  Rector? 
So  far  as  touches  the  matter  in  controversy,  it  plainly 
appears  to  be  this  :  They  offer  to  the  Minister  receiv- 
ing the  call  such  rights  in  their  temporalities  as,  by 
the  Ecclesiastical  Law  of  their  sect,  belong  to  the  of- 
fice which  is  tendered,  one  of  such  rights  being  that  of 
preaching  on  Sundays  in  the  church  provided  by  the 
congregation.  Such  an  offer,  therefore,  can  have 
nothing  to  do  with  the  title  to  the  church  edifice.  No 
matter  in  whom  the  title  may  reside,  if  the  congrega- 
tion has  the  use  of  the  building,  the  Rector  must,  of 
necessity,  have  the  right  to  partake  in  such  use.  .  .  . 
But  there  was  a  second  objection  taken  on  the  argu- 
ment, which  was,  that  on  the  assumption  of  the  exist- 
ence of  the  right  of  the  Rector  to  the  privileges 
claimed  by  him,  still,  it  was  said  an  invasion  or  dis- 
turbance of  such  rights  would  not  constitute  the 
ground  of  a  suit  at  law. 

"  I  cannot  yield  my  assent  to  this  proposition.  The 
nature  of  the  right  in  question  forbids  such  a  result. 
I  think  it  is  clear  that,  in  right  of  his  office,  a  Rec- 
tor, by  force  of  the  law  of  this  Church,  has  either  the 
possession  of  the  church  edifice,  or  has  a  privilege 
which  enables  him  to  enter  into  it — such  privilege  be- 
ing in  the  nature  of  an  easement.  Mr.  Murray  Hoff- 
man, in  his  learned  and  interesting  treatise  on  the  Law 


262  LA  W  OF  THE  CHURCH. 

of  the  Protestant  Episcopal  Church  in  the  United 
States,  page  266,  in  remarking  on  the  effect  of  the  in- 
corporation of  Churches,  states  his  views  in  these 
terms,  viz.,  '  The  title,  then,  to  the  church  and  all 
Church  property  is  in  the  trustees,  collectively,  for  all 
corporate  purposes;  but  there  is  another  class  of  pur- 
poses purely  Ecclesiastical,  as  to  which  the  statute  did 
not  mean  to  interfere  or  prescribe  any  rule.  These 
are  to  be  controlled  by  the  Law  of  the  Church.'  And 
the  conclusion  to  which  he  comes  is  thus  stated: 
4  That  the  control  and  possession  of  the  church  edi- 
fice upon  Sundays,  and  at  all  times  when  open  for  Di- 
vine services,  appertains  exclusively  to  the  Rector.'  I 
have  no  doubt  with  regard  to  the  correctness  of  this 
view. 

"  By  the  English  Ecclesiastical  Law,which,  although 
somewhat  modified  by  new  circumstances  and  by 
American  usages  and  statutes,  constitutes  the  sub- 
stantial basis  of  the  law  controlling  the  affairs  of  this 
particular  Church,  the  possession  of  the  church  and 
churchyard  is  in  the  incumbent.  Nor  does  it  make 
any  difference,  in  this  respect,  in  whose  hands  the  title 
to  the  religious  property  is  lodged,  as,  for  example,  in 
case  the  freehold  to  the  church  and  churchyard  is  in 
the  Rector,  nevertheless,  the  Curate  will  be  deemed  in 
possession  for  all  Ecclesiastical  purposes. 

"  In  exemplification  of  this  rule,  I  refer  to  an  inter- 
esting discussion  of  the  question  in  Grecnslade  v. 
Darby,  decided  during  the  present  year  by  the  Court 
of  Queen's  Bench  (L.  R.,  3  Q.  B.,  421).  'I  quite 
agree  with  the  former  decisions,'  such  is  the  declara- 
tion of  Chief-Justice  Cockburn,  '  that  an  incumbent 
has  possession  of  the  churchyard,  as  well  as  of  the 


THE  RECTOR.  263 

church,  for  all  spiritual  purposes;  therefore,  for  burials 
and  for  all  purposes  attached  to  his  office,  he  has  un- 
doubtedly uncontrolled  possession  of  the  churchyard.' 
To  the  same  purpose  is  the  rule  laid  down  by  Cripps, 
in  his  treatise  on  the  '  Church  and  Clergy,'  p.  158;  see 
also  1  Burns  '  Ecc.  Lazu,'  377;  Stocks  v.  Booth,  1 
T.  R.,  428.  If,  then,  we  adopt  this  theory — and  I  per- 
ceive no  reason  for  rejecting- it — that  for  the  purposes  of 
the  exercise  of  his  sacerdotal  functions,  the  Rector  be- 
comes possessed  of  the  church  buildings  and  grounds, 
it  will  be  difficult  to  devise  any  pretext  in  denial  of 
the  right  of  such  officer  to  a  civil  remedy  if  such  pos- 
session be  invaded." 

The  Rector's  right  of  action  was  sustained,  and  the 
appeal  dismissed.  This  decision  of  Chief-Justice  Beas- 
ley  was  cited  and  approved  in  Livingston  v.  Rector  et 
al.  (45  N.  J.  L.  Rep.,  230),  in  which  the  Court  held: 
"  The  English  Ecclesiastical  Law  forms  the  basis  of 
the  law  regulating  the  affairs  of  the  Episcopal  Church 
in  this  country,  and  is  in  force  except  so  far  as  it  has 
been  modified  and  changed  by  statute  and  by  the 
usages  and  Canons  of  the  Church." 

In  Jennings  v.  Scarborough  et  al.  (56  N.  J.  L.  Rep., 
401),  the  Court,  after  citing  and  approving  this  case  of 
Lynd  v.  Mtnzies  et  al.,  says:  "These  contractural 
and  property  rights  are  vested  in  a  Rector  so  long  as 
the  Rectorship  continues." 

In  Batter  son  et  al.  v.  Thompson  et  al.  (8  Phil.  Rep., 
251),  the  Court  says:  "  I  quite  concur  with  Chief-Jus- 
tice Beasley  in  the  remark  made  by  him  in  the  case 
heretofore  cited  {Lynd  v.  Menzies),  when  he  said:  '  No 
matter  in  whom  the  title  may  reside,  if  the  congrega- 
tion has  the  use  of  the   building,  the  Rector  must,  of 


264  LA  W  OF  THE  CHURCH. 

necessity,  have  the  right  to  partake  in  such  use  ';  and, 
I  may  add,  not  only  that  he  may  have  possession  of  the 
building,  but  that  he  may  of  right  perform  his  duties 
there  in  that  place,  and  not  elsewhere,  unless  at  his 
own  option." — (See  also  Humbert  v.  St.  Stephen's 
Church,  I  Edw.  Ch.  Rep.  [N.  Y.],  308  ;  Runkelv.  Wine- 
miller,  4  H.  &  McH.  [Md.~],  429;  Tetrett  et  al.  v.  Taylor 
et  al.,  9  Cranch,  43;  Cargill  v.  Sewall,  19  Me.,  288.) 

The  conclusion  deducible  from  these  authorities  and 
decisions  of  the  Courts  above  cited  is  irresistible,  that 
the  possession  and  control  of  the  church  edifice  apper- 
tains exclusively  to  the  Rector. 

The  conclusion  is  also  equally  clear  that  the  Rector 
has  the  exclusive  possession  and  control  of  all  other 
buildings  used  by  the  Church  for  Ecclesiastical  pur- 
poses.— {Humphrey's  "  Law  of the  ChurcJi"  p.  34.) 

EXCLUSIVE   CONTROL    OVER   THE    SERVICES   OF    THE 
CHURCH. 

The  Rector  of  necessity,  and  in  the  very  fitness  of 
things,  has  entire  and  exclusive  control  over,  and  the 
ordering  of,  the  Divine  service  of  the  Church,  subject 
only  to  the  laws  of  the  Church,  and  to  those  who  "  are 
over  him  in  the  Lord/'  The  Wardens  and  Vestrymen 
have  no  control  whatever  in  the  matter.  The  English 
Ecclesiastical  Law  is  thus  stated  by  Blunt  in  his 
"  Book  of  Church  Law,"  p.  330 : 

"  The  arrangements  for  Divine  service  are  under  the 
absolute  control  of  the  incumbent,  subject,  of  course, 
to  the  laws  laid  down  in  the  Prayer  Book  and  else- 
where. It  is  for  him  to  decide  whether  there  shall  be  any 
services  beyond  the  morning  and  evening,  and  whether 
the  Holy  Communion  shall  be  celebrated  at  the  same 


THE  RECTOR.  265 

time  when  Morning  Prayer  is  said,  or  whether  they 
shall  form  separate  services.  The  hours  of  Divine  ser- 
vice are  also  to  be  fixed  by  the  incumbent.  But,  above 
all,  it  rests  with  the  incumbent  to  control  all  those 
parts  of  Divine  service  which  are  not  actually  per- 
formed by  the  Clergy."  That  this  is  also  the  law  of  the 
American  Church  will  not,  I  think,  be  seriously  ques- 
tioned. 

A  review  of  the  laws  governing  Parishes,  going 
back  to  the  first  authentic  records  thereof,  clearly  evi- 
dences that  at  no  time,  and  by  no  law,  has  there  ever 
been  given  to  the  Wardens  and  Vestrymen  of  a  Parish, 
or  to  any  layman,  expressly  or  by  implication,  the 
slightest  right  to  interfere  in  any  manner  whatever 
with  a  Priest-Rector  in  the  "due  and  lawful  exercise 
of  his  holy  office."  He  is  responsible  for  the  proper 
discharge  of  his  official  duties  to  the  Ecclesiastical 
Authority  of  the  Diocese  alone.  The  mind  and  intent 
of  the  Church  on  this  subject  is  clearly  set  forth  in  the 
"  Office  of  Institution,"  in  which  she  charges  the  insti- 
tuted Minister,  that  he  is  "  faithfully  to  feed  that  por- 
tion of  the  flock  of  Christ "  which  is  entrusted  to  his 
care  ;  not  as  a  pleaser  of  men,  nor  of  the  Wardens  and 
Vestrymen  of  the  Parish,  but  to  continually  bear  in 
mind  that  he  is  accountable  to  the  Ecclesiastical  Au- 
thority of  the  Church  here,  "  and  to  the  Chief  Bishop 
and  Sovereign  Judge  of  all,  hereafter."  Upon  the 
Rector  is  imposed  by  the  Church  the  sacred  trust  and 
bounden  duty  of  bringing  all  the  members  of  the  Par- 
ish committed  to  his  care  "  into  that  agreement  in  the 
faith  and  knowledge  of  God,  and  to  that  ripeness  and 
perfectness  of  age  in  Christ,  that  there  be  no  place  left 
in  them  for  error  in  religion  or  for  viciousness  of  life." 


266  LA  W  OF  THE  CHURCH. 

He  is  possessed  of  full  power  to  perform  "  every  act 
of  sacerdotal  function  among  his  people,"  and  with 
the  performance  of  those  functions  no  one  may  inter- 
fere in  any  manner  whatsoever,  save  only  the  Bishop, 
and  other  chief  Ministers,  who,  according  to  the  Can- 
ons of  the  Church,  may  have  the  charge  and  govern- 
ment over  him  and  whom,  in  the  solemn  moment  of  his 
ordination,  he  promised  "  reverently  to  obey,  follow- 
ing with  a  glad  mind  and  will  their  godly  admonitions, 
and  submitting  himself  to  their  godly  judgments." 

If  a  Warden  or  Vestryman,  or  any  layman  be 
tempted  to  criticise  or  oppose  the  ministrations  of  his 
Priest  and  Rector,  let  him  read  carefully  the  Office  for 
the  "  Ordering  of  Priests,"  and  the  "  Office  of  Institu- 
tion " ;  then  will  he  learn,  that  to  the  Rector  alone  has 
been  committed  by  "  the  imposition  of  divinely  con- 
stituted hands,"  "authority  to  execute  the  office  of  a 
Priest  in  the  Church  of  God,"  "  and  to  preach  the 
Word,  and  to  minister  the  holy  Sacraments  in  the  con- 
gregation, where  he  shall  be  lawfully  appointed  there- 
unto "  ;  and  that  no  mere  distaste  for  his  methods,  nor 
preference  for  other  agencies,  will  justify  him  in  any 
course  of  inaction,  or  of  opposition  to  the  ministrations 
of  the  Rector,  provided  those  ministrations  be  in  ac- 
cordance with  the  doctrine,  discipline  and  worship  of 
the  Church. 

The  Rector  has  exclusive  direction  and  control  of 
the  Sunday-school  of  the  Parish,  the  appointment  01 
its  officers  and  teachers,  who  are  his  assistants  in  the 
work.  He  is  also  the  head  of  all  Guilds  and  other 
educational  and  charitable  associations  within  the 
Parish,  and  which  can  be  formed  only  with  his  consent, 
and  are  subject  to  his  control. 


THE  RECTOR.  267 

The  right  to  allow  any  other  Clergyman  of  the 
Church,  not  his  Bishop,  to  officiate  in  the  church  edi- 
fice, or  to  minister  any  office  of  the  Church  within  the 
limits  of  his  Parish,  belongs  exclusively  to  the  Rector. 
Canon  20  expressly  forbids  the  officiating  therein  of 
any  person  who  has  not  been  duly  licensed  or  or- 
dained ;  but  provision  is  made  that  the  Bishop  may 
permit  "Christian  men,  who  are  not  Ministers  of  this 
Church,  to  make  addresses  in  the  Church,  on  special 
occasions."  This  power  belongs  only  to  the  Bishop, 
and  not  to  the  Rector. 

CONTROL  OVER  THE  MUSIC  OF  THE  CHURCH. 

The  Rector,  by  virtue  of  his  responsibility  for,  and 
control  over,  the  services  of  the  Church,  has  also  exclu- 
sive control  over,  and  direction  of,  the  music  of  the 
Church. 

The  English  Ecclesiastical  Law  on  the  subject  is 
stated  by  Dr.  Blunt  {"Book  of  Church  Law," pp.  330, 
331)  as  follows  : 

"Above  all,  it  rests  with  the  incumbent  to  control  all 
those  parts  of  Divine  service  which  are  not  actually  per- 
formed by  the  Clergy.  Thus  Lord  Stowell  decided — in 
a  case  where  the  Church  Wardens  instituted  a  suit 
against  their  Clergyman  for  obstructing  the  singing  of 
the  school  children  by  introducing  the  accompaniment 
of  an  organ — that  '  the  Minister  has  the  right  of  di- 
recting the  service ;  e.  g.,  when  the  organ  shall  and 
shall  not  play,  and  when  the  children  shall  and  shall 
not  chant,  though  the  organist  is  paid  and  the  chil- 
dren managed  by  the  Church  Wardens  '  {Hutchins  v. 
Denziloe,  1  Hagg.,  170).     'They  must  complain  to  the 


268  LA  W  OF  THE  CHURCH. 

Ordinary  if  he  introduces  irregularities  into  the  ser- 
vice/— {Wilson  v.  M'Math,  3B.&  A.,  250.) 

"In  the  case  of. St.  George's-in-the-East,  the  Bishop 
of  London  declared:  '  The  law  allows  an  incumbent  to 
have  a  choral  rather  than  a  read  service,  if  he  pleases; 
and  though  I  may  highly  disapprove,  as  I  do,  of  for- 
cing a  choral  service  on  an  unwilling  Parish,  I  can  only 
remonstrate;  I  have  by  law  no  power  of  forbidding,  or, 
if  I  forbid,  of  enforcing  obedience  to  my  mandate.' — 
("Ecc.  Gaz.,"  Sept.,  1859.) 

"  Similar  language  was  uttered  at  a  later  date  by  the 
Bishop  of  Lichfield  in  the  case  of  St.  George's,  Wol- 
verhampton."— {"Ecc.  Gas." Jan.,  1870.) 

That  this  is  also  the  law  of  the  American  Church,  is 
clearly  evidenced  by  Canon  45,  "  Of  the  Music  of  the 
Church,"  which  reads  as  follows  :  "  It  shall  be  the  duty 
of  every  Minister  to  appoint  for  use  in  his  Congrega- 
tion hymns  or  anthems  from  those  authorized  by  the 
Rubric,  and,  with  such  assistance  as  he  may  see  fit  to 
employ  from  persons  skilled  in  music,  to  give  order 
concerning  the  tunes  to  be  sung  in  his  Church.  It 
shall  be  his  especial  duty  to  suppress  all  light  and 
unseemly  music,  and  all  irreverence  in  the  perform- 
ance." 

This  Canon  was  not  enacted  for  the  purpose  of  im- 
parting authority  to  the  Clergy  over  the  music  of  the 
Church  ;  that  authority  they  already  possessed,  and 
such  possession  was  in  no  way  questioned.  Its  pur- 
pose was  to  make  mandatory  upon  the  Clergy  the  ex- 
ercise of  the  power  which  was  inherent  in  their  office, 
viz.,  to  "  give  order"  for  the  regulation  of  the  music  of 
the  Church. 

It  clearly  follows  that  the  Rector    alone  has   the 


THE  RECTOR.  269 

right  to  say  what  anthems  and  tunes  shall  be  sung, 
when  the  organ  shall  and  shall  not  play,  when  the 
choir  shall  and  shall  not  chant  or  sing,  and  what  parts 
of  the  service  shall  be  read  and  what  parts  sung.  The 
Wardens  and  Vestrymen  have  no  authority  whatever 
in  the  matter.  Should  the  Rector  introduce  any  ir- 
regularities into  the  service,  they  have  no  right  to  in- 
terfere, they  can  only  complain  to  the  Bishop. 

The  custom  prevalent  in  some  Parishes,  of  having  a 
"  Committee  on  Music,"  appointed  by  the  Vestry,  if  such 
committee  is  given  any  authority  whatever  over  the 
music  of  the  Church,  is  an  unlawful  infringement  upon 
the  rights  of  the  Rector,  and  is  as  illogical  and  as  much 
out  of  place  as  the  appointment  of  a  committee  on  ser- 
mons would  be. 

The  words  of  Bishop  Wilmer,  on  this  subject,  in 
rendering  his  decision  in  the  case  of  "Rector  v.  Vestry 
of  St.  Johns  Church,  Mobile,  Ala."  are  so  well  chosen, 
and  so  true,  as  to  deserve  their  being  read  by  the  War- 
dens and  Vestrymen  of  every  Church  in  the  land. 
In  speaking  of  the  relation  of  the  Rector  to  the  Wor- 
ship of  the  Sanctuary,  he  says  :  "  He  is,  by  virtue  of 
his  office,  the  Celebrant  of  Divine  worship.  That  is 
one  of  his  special  functions,  conferred  upon  him  in  his 
ordination.  That  is  a  part  of  his  inherent  preroga- 
tive, not  to  be  questioned  nor  invaded. 

"  Then,  again,  we  come  to  consider  what  relation  the 
musical  part  of  the  service  bears  to  the  Worship  of  the 
Sanctuary.  It  is,  beyond  question,  with  its  Anthems 
and  Hymns  of  Praise  and  Adoration,  together  with 
the  accompaniment  of  Instruments  and  Choristers, 
brought  in  to  enliven  and  stimulate  devotion,  an  in- 
tegral part  of  Divine  Worship — as  essentially  so  as 


270  LA  TV  OF  THE  CHURCH. 

the  offering  of  Collects  and  Litanies.  In  right  views 
of  the  musical  part  of  Divine  Service,  as  only  a  varied 
part  of  Worship,  will  be  found  the  solution  of  the 
main  question  embraced  in  this  present  '  Contention.' 
The  bringing  in  of  Organ  and  Choir  alters  not  a  whit 
the  relation  of  the  Clergy  to  the  musical  parts  of  the 
Worship.  All  these  accessories  and  accompaniments 
are  brought  in  to  aid  and  enliven  devotion,  but  the 
Minister  officiating  is  virtually  the  Celebrant,  and  is 
the  one  leading  and  responsible  person  worshipping,  in 
accordance  with  the  recognized  principle,  '  Qui  facit 
per  alium  facit  per  se.'  " 

HIS  RIGHT  TO  APPOINT  THE  ORGANIST  AND  MEMBERS 
OF  THE  CHOIR. 

While  the  Vestry  have  the  right  to  determine  the 
amount  of  salary,  if  any,  to  be  paid  to  the  Organist 
and  members  of  the  Choir,  the  Rector  has  the  right  of 
appointment.  Under  the  English  Ecclesiastical  Law 
"  The  incumbent,  by  virtue  of  his  responsibility  for, 
and  control  over,  the  services,  has  the  right  of  saying 
whether  the  organ  shall  or  shall  not  play,  and  who 
shall  play  on  it. — ( Wyndham  v.  Cole,  L.  R.,  I  P.  D.,  130.) 

"  The  Organist  is,  in  fact,  in  the  same  position  with 
regard  to  the  incumbent  as  are  the  Choirmen  and  the 
Choristers.  If  there  was,  as  there  probably  some- 
times is,  a  special  endowment  for  an  Organist,  the 
electors,  whoever  they  were,  could  confer  upon  their 
nominee  the  right  to  the  stipend  ;  but  they  could  not, 
as  against  the  will  of  the  incumbent,  enable  him  to 
play  the  organ." — {Blunts  "Book  of  Church  Law" p. 
297.  See  also,  1  Burns  "  Ecc.  Law"  [Ed.  1842], 
374  a.  b.) 


THE  RECTOR.  271 

The  provision  of  the  Canon  of  the  American  Church, 
(Canon  45),  "  That  it  shall  be  the  duty  of  every  Minister 
.  .  .  with  such  assistance  as  he  may  see  fit  to  em- 
ploy from  persons  skilled  in  music,  to  give  order,"  etc., 
is  a  direct  incorporation  of  the  principles  of  the  Eng- 
lish Ecclesiastical  Law  upon  this  subject,  and  clearly 
recognizes  the  right  of  the  Rector  to  the  appointment 
of  the  Organist  and  Choristers,  the  "  persons  who  are 
skilled  in  music."  As  has  before  been  stated,  this 
Canon  was  not  enacted  for  the  purpose  of  conferring 
authority  in  the  matter  upon  the  Clergy  ;  only  to  com- 
pel them  to  exercise  the  prerogative  they  already  pos- 
sessed, virtute  officii.  The  history  of  the  Canon  is,  in 
brief,  as  follows  :  In  order  to  "suppress  all  light  and 
unseemly  music,  and  all  indecency  and  irreverence," 
in  the  performance  of  the  services  of  the  Church, 
which,  as  early  as  1832,  seemed  to  have  become  only 
too  common,  the  General  Convention  of  that  year 
passed  a  "  resolution  "  calling  upon  the  Clergy,  not  the 
Vestry,  as  Bishop  Wilmer  well  says,  "to  give  order" 
for  the  regulation  of  the  music  of  the  Church.  This 
"  resolution  "  was  ordered  to  be  prefixed  to  the  "  Col- 
lection of  Psalms  and  Hymns,"  which  at  that  time 
formed  the  hymnology  of  the  Church.  The  "  resolu- 
tion "  not  having  accomplished  the  desired  purpose, 
the  General  Convention  in  1874  changed  the  "  resolu- 
tion "  to  a  Canon,  making  it  mandatory  upon  the  Rec- 
tor of  every  Parish  to  exercise  his  inherent  right,  and 
with  such  assistance  as  he,  the  Rector,  might  "  see  fit 
to  employ,  from  persons  skilled  in  music,  to  give 
order,"  etc. 

Bishop  Wilmer,  in  his  "  decision "  before  cited, 
comments  most  clearly  upon  this  Canon,  and  his  con- 


272  LA  W  OF  THE  CHURCH. 

elusions  seem  irresistible.  He  says :  u  The  parties 
designated  as  '  skilled  in  imtsic '  cannot  be  reasonably 
supposed  to  be  an  unknown  and  haphazard  set  of  peo- 
ple— legislation  takes  note  of  known  and  recognized 
parties — but  are  most  assuredly  the  Choir,  and  the 
Organist  the  chief  member  thereof.  There  is  no  other 
collection  of  people  in  a  congregation  known  as  '  skilled 
in  music'  but  the  Choir,  and  no  other  collection  was  in 
the  minds  of  the  Legislators  who  framed  the  Canon. 
This  is  without  doubt  the  only  reasonable  interpreta- 
tion of  the  language  of  the  Canon." 

"  The  Minister,  then,  is  to  employ  the  assistance 
needed,  and  it  must  be  such  assistance  '  as  he  may  see 
fit'  In  a  word,  he  must  select  the  Organist  and  the 
Choir.  Any  other  interpretation,  by  which  the  Vestry 
or  any  other  party  should  have  the  selection  of  '  the 
persons  skilled  in  music,'  would  introduce  an  element 
of  conflicting  authority,  likely  to  thwart  or  be  sub- 
versive of  the  authority  of  the  Minister,  and  tending 
inevitably  to  endless  discord  and  confusion." 

This  testimony  of  Bishop  Wilmer,  as  to  what  was 
the  "minds  of  the  Legislators  who  framed  the  Canon," 
is  the  more  important  and  valuable,  as  the  Bishop  was 
himself  one  of  the  "  Legislators."  Bishop  Wilmer  also 
quotes  the  opinion  of  the  Bishop  of  Maryland,  which  is 
to  the  same  effect.  "  As  to  the  appointment  of  the 
Choristers  or  Organist,  the  Canon  of  the  General  Con- 
vention seems  to  settle  that."  [Citing  Title  I., 
Canon  25  {now  Canon  45),  of  the  Digest^  "  This  places 
the  choice  of  the  persons  entirely  under  his  [the  Rec- 
tor's] control  and  judgment ;  and  the  latter  part  of  the 
same  clause  seems  to  give  him  power  even  to  dismiss. 
I  have  always  felt  that  this  was  absolutely  clear." 


THE  RECTOR.  273 

The  late  Bishop  Stevens  of  Pennsylvania,  who  was 
afterwards  also  one  of  the  "Legislators"  who  framed 
the  Canon  in  question,  in  giving  his  decision  in  a  case 
in  his  Diocese  in  1869,  said:  "The  Rector  has  the 
full  right  to  select  the  Choir." 

I  submit  that  the  only  interpretation  of  the  Canon 
that  is  consonant  with  the  well-settled  principles  of 
Ecclesiastical  Law  is  the  interpretation  that  has  been 
given  by  the  Bishops  of  the  Church,  as  above  cited, 
and  which  recognizes  the  inherent  right  of  the  Rector 
to  appoint  the  Organist  and  the  members  of  the  Choir. 
It  is  the  only  interpretation  which,  in  my  judgment, 
the  courts  would  place  upon  the  Canon.  For  it  is  a 
well-settled  rule  of  interpretation,  as  before  shown,  that 
such  construction  must,  if  possible,  be  given  to  a 
statute  as  will  not  be  in  conflict  with  the  general  prin- 
ciples of  law;  also,  that  language  susceptible  of  more 
than  one  construction  must  receive  that  construction 
which  will  bring  it  into  harmony  with  the  legislative 
purpose  aimed  at,  rather  than  that  which  will  tend  to 
neutralize  and  subvert  the  very  purp  se  for  which  the 
law  was  enacted. 

It  is  difficult  to  see  how  the  right  of  the  Rector  to 
appoint  the  Organist  and  members  of  the  Choir,  to  de- 
cide as  to  the  personnel  of  his  assistants  in  rendering 
the  Divine  service  of  the  Church,  can  well  be  ques- 
tioned. It  is  the  Law  of  the  English  Church;  it  is  gen- 
eral Ecclesiastical  Law,  and  therefore  the  Law  of  the 
American  Church.  That  it  is  the  Law  of  the  Church,  is 
also  clearly  deducible  from  our  Canons  and  Offices. — 
(Hoffman's  "Ecc.  Law"  pp.  88,  89;  Humphrey 's  "Law 
of  the  Church"  p.  35.) 

It  is  also  clear,  that  to  the  Rector  belongs  the  right 


274  LAW  OF  THE  CHURCH. 

to  determine  as  to  the  character  of  the  Choir;  whether 
it  shall  be  a  quartette,  or  chorus,  or  vested  Choir. 

CONTROL   OF   THE   ORGAN. 

To  the  Rector  belongs,  exclusively,  the  right  to 
control  the  organ  and  to  direct  its  use,  at  all  times  and 
for  all  purposes. 

This  right  follows,  of  necessity,  from  the  right  of  the 
Rector  to  the  possession  and  control  of  the  tempor- 
alities of  the  Church. 

The  English  Ecclesiastical  Law  on  this  point  is  ex- 
plicit. The  control  of  the  organ  rests  with  the  Rec- 
tor, and  he  may  direct  its  use  at  such  times  as  he  sees 
proper. 

In  Wyndham  v.  Cole  (L.  R.,  i  P.  D.,  130),  Sir  Robert 
Phillimore  issued  a  monition  against  an  Organist  for  in- 
terfering with  the  Rector's  right  to  control  and  direct 
the  use  and  management  of  the  organ,  and  condemn- 
ing him  in  costs. 

In  Eyre  v.  Jones  (Ecc.  Gaz.,  Jan.,  1870),  the  Court 
held,  that  if  "  the  organ  is  locked  up  to  hinder  it  from 
being  used  in  Divine  service,  the  incumbent  has 
authority  to  break  it  open,  having  entire  control  over 
it,  whether  for  use  or  disuse  in  any  service,  at  any  time, 
and  by  whomsoever  the  Organist  may  be  paid." — 
{Blunts  "Book  of  Church  Lazu,"  p.  331.) 

The  direct  question  of  the  Rector's  right  to  the  con- 
trol of  the  organ  came  before  Bishop  Wilmer  of  Ala- 
bama, in  the  case  before  cited.  {Rector  v.  Vestry  of  St. 
John's  Church,  Mobile,  Ala.)  It  seems  that  a  differ- 
ence had  arisen  in  the  said  Parish  between  the  Rector 
on  the  one  hand,  and  the  Wardens  and  Vestrymen  of 
the  Parish  on  the  other,  as  to  their  respective  rights  to 


THE  RECTOR.  275 

the  control  and  use  of  the  organ,  on  other  and  all  oc- 
casions, than  for  the  "  public  services,  burials  and 
weddings." 

The  question  was  submitted  by  the  said  parties  to 
the  Bishop  for  his  determination  in  the  matter.  Be- 
fore rendering  his  decision  thereon,  the  Bishop  re- 
ferred the  question  to  the  Standing  Committee  of  the 
Diocese  for  their  advice  and  judgment.  The  question 
received  a  most  exhaustive  consideration  at  the  hands 
of  the  said  Standing  Committee,  but  they  were  not  able 
to  agree  as  to  the  respective  rights  of  the  parties. 

Written  arguments  on  both  sides  of  the  question 
were  submitted  to  the  Bishop  by  several  members  of 
the  said  Committee. 

The  Bishop,  after  a  due  consideration  of  the  ques- 
tion, and  of  the  arguments  thus  submitted,  rendered 
his  decision,  which  was,  in  part,  as  follows:  "My  de- 
termination, therefore,  in  this  contention  is  this — that 
there  is  no  reason  to  be  found  in  Canon  Law,  or  in 
the  alleged  absence  of  Canon  Law,  in  precedent,  in 
usage,  or  in  the  general  propriety  and  fitness  of  things, 
for  limiting  the  control  of  the  Rector  over  the  Organ, 
the  Organist  or  the  Choir  and  any  of  its  accompani- 
ments and  accessories — all  of  which  enter  into  the 
worship  of  which  he  is  virtually,  constructively,  and 
for  the  most  part  actually,  and  by  virtue  of  his  office, 
'The  Celebrant  /'  According  to  the  principle  already 
cited — 'Qui  facit  per  alium  facit per  se.'  " 

CONTROL  OVER    THE    ORNAMENTS   OF  THE   CHURCH. 

In  the  absence  of  any  Canon  of  our  own,  we  must 
be  guided  by  the  Law  of  the  English  Church,  the  gen- 
eral Ecclesiastical  Law,  in  determining  who  may  set  up 


276  LA  W  OF  THE  CHURCH. 

or  place  lawful  ornaments  and  decorations  in  a  church, 
and  who  may  remove  any  of  the  same.  Dr.  Blunt 
says  {"Book  of  Church  Law?  p.  281):  "  Equally  strict 
is  the  rule  that  the  Church  Wardens  have  no  authority 
to  interfere  with  any  of  the  ornaments  of  the  church 
or  with  any  temporary  decorations  set  up  there  with 
the  consent  of  the  Minister.  If  they  consider  any  of 
these  to  be  contrary  to  Ecclesiastical  Law,  they  may 
report  them  to  the  Bishop  in  the  form  of  a  present- 
ment ;  but  can  in  no  way  interfere  with  them  without 
being  liable  to  a  suit  in  the  Ecclesiastical  courts,  in 
which  proof  of  such  interference  (unless,  perhaps,  in 
the  case  of  glaringly  indecent  and  irreverent  ornaments 
or  decorations  which  must  be  removed  at  once  to 
avoid  scandal)  would  bring  condemnation  with  costs." 
In  Church  Wardens  of  St.  John's  Church,  etc.,  v.  Par- 
ishioners, etc.  (1  Hagg.  Con.  Rep.,  198),  the  Court  held: 
"  The  law  respecting  Church  ornaments  is  now  gener- 
ally understood  and  settled.  The  consent  of  the 
parishioners  is  not  indispensably  necessary  unless  to 
charge  the  Parish  with  any  expense  for  the  support  of 
the  ornament  after  it  has  been  put  up.  But  if  there  is 
no  such  charge  incurred,  the  approbation  of  the  ma- 
jority of  the  parishioners  is  not  necessary,  nor  their 
disapprobation  binding  on  the  Ordinary." 

In  Dewdneyv.  Good  (7  Jur.  [N.S.],637),  the  statement 
of  the  case  shows  that  the  Church  Wardens  of  a  Parish, 
acting  upon  a  resolution  of  the  Vestry,  but  against  the 
prohibition  of  the  Rector,  broke  open  the  door  of  the 
church  and  proceeded  to  arrange  certain  of  the  seats, 
and  to  alter  portions  of  the  pulpit.  The  Court  held 
that  "  all  who  had  taken  part  in  these  proceedings 
had  been  guilty  of  a  grave  offence.     .     .     .     The  law 


THE  RECTOR.  277 

on  this  subject  is  beyond  all  doubt  or  dispute.  No 
man,  whoever  he  may  be,  has  any  right  to  make  any 
changes  in  the  church  except  the  Ordinary  and  those 
legally  deputed  by  him.' 

The  case  of  Ritchings  v.  Cordingley  {Law  Rep.,  3 
Adm.  and  Ecc,  113)  is  a  most  important  one.  From 
the  statement  of  the  case  it  appears  that  a  ledge  or 
retable  had  been  placed  on  the  Altar  of  the  Parish 
Church  by  the  order  of  the  incumbent,  without  the 
consent  of  the  Ordinary.  After  the  lapse  of  several 
months  a  Vestry  meeting  was  held  and  a  resolution 
then  adopted  that  the  Church  Wardens  should  take 
steps  for  removing  the  retable.  On  the  day  after 
the  Vestry  meeting  one  of  the  Church  Wardens  for- 
cibly entered  the  church,  pulled  down  the  retable 
and  removed  the  altar  cloth  from  the  Altar.  The  Court 
held  that  the  conduct  of  the  Church  Warden  was 
clearly  illegal,  and  condemned  him  in  certain  costs. 

To  the  same  effect  are  Marshall  v.  Andrew,  Ecc. 
Gaz.,  1 871;  Blake  v.  The  Church  Wardens  of  Wetheraly 
Ecc.  Gaz.,  May,  1874;  Evans  v.  Dodson,  Ecc.  Gaz.,  Dec. , 

1874. 

The  law  of  the  Church  regarding  the  right  to  place 
ornaments  and  temporary  decorations  in  a  church,  and 
to  remove  them  therefrom,  as  deduced  from  the  English 
authorities  and  decisions  on  this  subject,  would  seem 
to  be  as  follows: 

First.  That  the  Rector  has  the  exclusive  right  and 
control  over  the  placing  of  temporary  decorations  in 
the  church  or  removing  them  therefrom. 

Second.  That  the  Rector,  acting  with  the  advice 
and  consent  of  the  Bishop,  may  place  such  other  law- 
ful decorations  and   ornaments  in  the  church  as  he 


278  LA  W  OF  THE  CHURCH. 

may  deem  advisable,  without  the  consent  of  the  War- 
dens and  Vestrymen,  or  of  the  parishioners,  provided 
the  Parish  be  not  chargeable  with  the  expense  of 
placing  them  in  the  church,  or  maintenance  of  the 
same. 

Third.  That  the  Wardens  and  Vestrymen,  or  any  of 
the  parishioners,  have  no  right  to  place  any  decora- 
tions or  ornaments  in  the  church  without  the  consent 
of  the  Rector. 

Fourth.  That  decorations,  other  than  temporary 
decorations  and  ornaments,  once  placed  or  set  up  in  a 
church,  may  not  be  removed  therefrom  except  with 
the  joint  consent  of  the  Rector,  Wardens,  and  Vestry- 
men, or  by  order  of  the  Bishop  of  the  Diocese.  It 
seems  to  be  the  better  opinion  that  the  Bishop's  con- 
sent is  also  necessary  to  the  removal  of  any  perma- 
nent ornaments,  or,  at  least,  that  they  may  not  be  law- 
fully removed  against  his  express  objection.. 

As  the  church  edifice  and  all  its  appurtenances  are  de- 
signed for  promoting  the  spiritual  welfare  of  the  Parish, 
that  the  Rector,  subject  to  the  Canons,  rubrics  and  or- 
dinances of  the  Church,  and  the  godly  admonitions 
and  judgments  of  his  Bishop,  should  have  complete 
control  over,  and  the  right  to  direct  the  management 
thereof,  in  such  ways  as  may  seem  to  him  best  suited 
to  subserve  the  spiritual  welfare  of  those  committed 
to  his  care,  is,  in  my  judgment,  clear  and  uncontro- 
vertible. 

It  may  also  be  stated,  as  a  rule  of  law,  that  things 
once  given  to  a  church,  or  placed  therein  for  permanent 
use  or  ornamentation,  thereby  become  church  goods, 
and  may  not  be  removed  by  the  donor. — (i  Bum's  "Ecc. 
Law;'  p.  376.) 


THE  RECTOR.  279 

RIGHT   OF   RECTOR  TO   REPEL   FROM   THE   HOLY 
COMMUNION. 

Canon  40,  Section  ii.,  of  the  Digest,  provides  that  when 
a  person  who  has  been  repelled  from  the  Holy  Com- 
munion under  the  rubrics,  shall  appeal  to  the  Bishop, 
it  shall  be  his  duty  to  restore  him,  or  cause  an  inquiry 
to  be  made. 

The  Rubric  herein  referred  to  is  prefixed  to  the 
Order  for  the  Holy  Communion,  and  reads  as  follows: 
"If among  those  who  come  to  be  partakers  of  the 
Holy  Communion,  the  Minister  shall  know  any  to  be 
an  open  and  notorious  evil  liver,  or  to  have  done  any 
wrong  to  his  neighbours  by  word  or  deed,  so  that  the 
Congregation  be  thereby  offended;  he  shall  advertise 
him,  that  he  presume  not  to  come  to  the  Lord's  Table, 
until  he  have  openly  declared  himself  to  have  truly 
repented  and  amended  his  former  evil  life,  that  the 
Congregation  may  thereby  be  satisfied;  and  that  he 
hath  recompensed  the  parties  to  whom  he  hath  done 
wrong;  or  at  least  declare  himself  to  be  in  full  purpose 
so  to  do,  as  soon  as  he  conveniently  may. 

"The  same  order  shall  the  Minister  use  with  those 
betwixt  whom  he  perceiveth  malice  and  hatred  to 
reign;  not  suffering  them  to  be  partakers  of  the  Lord's 
Table,  until  he  know  them  to  be  reconciled.  And  if 
one  of  the  parties,  so  at  variance,  be  content  to  forgive 
from  the  bottom  of  his  heart  all  that  the  other  hath 
trespassed  against  him,  and  to  make  amends  for  that 
wherein  he  himself  hath  offended,  and  the  other  party 
will  not  be  persuaded  to  a  godly  unity,  but  remain 
still  in  his  frowardness  and  malice,  the  Minister  in 
that  case  ought  to  admit  the  penitent  person  to  the 
Holv  Communion,  and  not  him  that  is  obstinate. 


280  LAW  OF  THE  CHURCH. 

"Provided,  that  every  Minister  so  repelling  any,  as  is 
herein  specified,  shall  be  obliged  to  give  an  account  of 
the  same  to  the  Ordinary,  within  fourteen  days  after, 
at  the  farthest." 

The  Canon  above  cited  (Canon  40)  also  provides 
that  when  the  Minister  shall  have  laid  information 
before  the  Bishop  according  to  the  provisions  of  the 
Rubric  (the  Rubric  above  cited),  the  Bishop  need  not 
necessarily  institute  an  inquiry,  unless  the  party  re- 
pelled lodge  a  complaint  with  him  ;  in  which  case,  it  is 
made  the  duty  of  the  Bishop  either  to  restore  him,  if 
he  deem  the  cause  assigned  by  the  Minister  for  such 
repulsion  to  be  insufficient,  or  to  institute  an  inquiry, 
as  may  be  directed  by  the  Canons  of  the  Diocese,  or,  in 
the  absence  of  any  such  Canons,  to  proceed  according 
to  such  principles  of  law  and  equity  as  will  insure  an 
impartial  decision. 

The  Canon  also  provides  that  no  Minister  shall  be 
required  to  admit  to  the  Sacraments  a  person  so 
refused  or  repelled,  without  the  written  direction  of 
the  Bishop. 

It  further  provides  that  the  Sacraments  shall  not  be 
refused  in  any  case  to  a  penitent  person  at  the  point 
to  die. 

The  Rubric  of  our  Prayer  Book  regarding  repulsion 
from  the  Holy  Communion  is  almost  a  literal  repro- 
duction of  that  in  the  English  Office,  which  is  a  part 
of  the  Statutes  2  and  5  Edward  VI.,  and  13th,  14th, 
Charles  II. 

The  26th,  27th,  and  109th  Canons  of  1603  are  obvi- 
ously founded  upon  the  rubric,  and  require  the  present- 
ment of  the  offenders.  In  the  27th  Canon  it  is  pro- 
vided "  that  every  Minister  so  repelling  any,  as  is  sped- 


THE  RECTOR.  281 

fied  either  in  this  or  in  the  next  precedent  Constitu- 
tion, shall,  upon  complaint,  or  being  required  by  the 
Ordinary,  signify  the  cause  thereof  unto  him,  and 
therein  obey  his  order  and  direction." 

Statute  13,  14  Charles  II.,  added  a  passage  to  the 
rubric,  making  it  mandatory  upon  the  Minister  within 
fourteen  days,  to  make  the  presentment  required  by 
rubric  to  the  Ordinary,  who  was  required  to  proceed  to 
punish  as  directed  by  the  Canon.  The  109th  Canon 
provided  that  such  offenders  were  to  be  presented  to 
the  Ordinaries  "to  the  intent  that  they,  and  every 
of  them,  may  be  punished  by  the  severity  of  the  laws, 
according  to  their  deserts ;  and  such  notorious  offenders 
shall  not  be  admitted  to  the  Holy  Communion  till  they 
be  reformed." 

Dr.  Wheatly  ("  On  the  Common  Prayer"  pp.  269, 
270)  states  the  law  in  the  English  Church.  After 
showing  that  the  law  clearly  distinguishes  between 
absolutely  excluding  a  person  from  the  Holy  Com- 
munion as  a  judicial  act,  and  merely  repelling  or  sus- 
pending a  person  until  the  Minister  can  lay  the  case 
before  the  Bishop  for  his  decision,  and  that  the  rubric 
cannot  be  understood  as  giving  any  power  to  the  Min- 
ister to  act  judicially  in  the  matter,  he  quotes  St. 
Augustine  as  to  the  practice  of  the  Church,  which 
quotation  is,  in  part,  as  follows : 

"  We  cannot  repel  any  man  from  the  Communion 
unless  he  has  freely  confessed  his  offence,  or  hath  been 
accused  and  convicted  in  some  Ecclesiastical  consis- 
tory or  secular  court." 

"  That  all  this  plainly  refers  to  the  power  of  seclusion 
from  the  Communion  judicially,  and  with  authority ; 
whereas  the  design  of  this  rubric  is  only  to  enable  the 


282  LA  W  OF  THE  CHURCH. 

Curate  to  refuse  to  administer  to  any  of  his  congrega- 
tion (of  whose  ill  life  and  behaviour  he  has  received 
sudden  notice)  till  he  can  have  an  opportunity  of  laying 
his  case  before  the  Ordinary. 

'■  Whom,  in  the  meanwhile,  the  Curate  is  empowered 
by  this  rubric  (which  is  itself  a  law,  being  established 
by  the  Act  of  Uniformity)  to  refuse  the  Communion 
if,  after  due  admonition  to  keep  away,  he  obstinately 
offers  himself  to  receive.  That  this  is  no  novel  power 
is  plain  from  the  practice  of  the  ancient  Church;  in 
which,  though  all  open  offenders  as  soon  as  known  were 
put  under  censure,  yet  if  before  censure  they  offered 
themselves  at  the  Communion,  they  were  repelled." 

The  Law  of  the  English  Church  relative  to  the 
power  of  the  Minister  to  repel  persons  from  the  Holy 
Communion  seems  clear  and  beyond  controversy.  His 
power  is  only  suspensory,  and  in  every  case,  when 
he  repels  a  person  from  the  Holy  Communion,  he 
must,  within  fourteen  days,  give  notice  to  the  Bishop, 
who  alone  can  act  judicially  and  with  authority  in  the 
matter. 

As  Judge  Hoffman  says  ("  Law  of  the  Church"  p. 
438),  in  commenting  on  the  English  rubric  and  Canons  : 
"  This  power  is  vested  in  the  first  instance  in  the 
Minister,  but  only  to  be  exercised  in  the  cases  speci- 
fied, and  subject  to  the  Bishop's  revision;  and  the 
understood  construction  of  the  English  rubric  is,  that 
admonition  must  be  first  resorted  to." 

That  this  is  also  the  Law  of  the  American  Church 
cannot,  I  think,  be  questioned. 

Under  the  Rubric  prefixed  to  the  Order  for  the  Holy 
Communion  in  the  American  Prayer  Book,  which,  as 
has  before  been  shown,  is  substantially  identical  with 


THE  RECTOR.  233 

the  English  Rubric,  u  Minister  repelling-  a  person,  as 
specified  in  the  Rubric,  ^  shall  be  obliged  to  give  an  ac- 
count of  the  same  to  the  Ordinary,  within  fourteen 
days  after,  at  the  farthest." 

It  is  difficult  to  understand  how  clearer  and  more 
explicit  language  could  possibly  have  been  used.  It 
leaves  no  discretion  whatever  in  the  matter  to  the  Min- 
ister. If  he  repels  any  one  from  the  Holy  Communion, 
he  must,  "  within  fourteen  days  after,  at  the  farthest," 
report  such  repulsion  to  the  Bishop.  His  power,  as 
Judge  Hoffman  well  says,  is  only  suspensory,  and  his 
rectorial  jurisdiction  limited.  He  cannot  pass  judgment 
upon  the  offender ;  he  can  only,  like  a  committing 
magistrate,make  a  presentment  of  him  to  a  higher  Court, 
the  Bishop  of  the  Diocese,  who,  virtute  officii,  alone  can 
act  judicially  and  with  authority  in  the  matter. 

Nor  can  a  Minister  set  up  qualifications  of  his  own 
dictation,  such  as  the  refraining  from  certain  amuse- 
ments, or  the  neglect  to  do  certain  things  enjoined  by 
the  Minister,  but  not  made  compulsory  by  the  Church. 
The  grounds  of  repulsion  are  set  forth  in  the  Rubric, 
the  first  of  which  is,  "  to  be  an  open  and  notorious  evil 
liver." 

Wheatly,  in  the  passage  before  referred  to,  defines 
as  notorious  evil  livers,  "such  as  the  sentence  of  the 
law  hath,  either  upon  their  own  confession  or  full  con- 
viction, declared  so  to  be." 

The  next  ground  of  repulsion  is,  when  any  "  have 
done  any  wrong  to  his  neighbours  by  word  or  deed,  so 
that  the  Congregation  be  thereby  offended."  The 
Rubric  also  provides  that  the  Minister  shall  use  the 
same  order  with  those  '"  betwixt  whom  he  perceiveth 
malice  and  hatred  to  reign." 


284  LA  W  OF  THE  CHURCH. 

The  Rubric  further  provides  that  if  one  of  the  parties, 
so  at  variance,  is  willing  to  forgive  and  make  amends, 
and  the  other  is  not,  then  the  Minister  ought  to  admit 
the  penitent  person  to  the  Holy  Communion,  and  not 
him  that  is  obstinate. 

Should  a  minister  so  far  violate  the  law  as  to  repel 
any  one  from  the  Holy  Communion  for  causes  obviously 
other  than  those  that  are  determined  by  Rubric,  it 
would  be  the  duty  of  the  Bishop  to  restore  the  person 
so  repelled,  either  upon  the  presentment  of  the  Minis- 
ter, or  upon  the  complaint  of  the  party  repelled,  and 
also  to  admonish  the  Minister  so  repelling.  And  should 
a  Minister  repelling  any  from  the  Holy  Communion, 
neglect  or  refuse  to  give  an  account  of  the  same  to  the 
Bishop,  as  provided  by  the  Rubric,  it  would  undoubtedly 
be  such  a  violation  of  the  Law  of  the  Church  as  to 
subject  him  to  discipline. 

The  power  of  a  Minister  to  repel  a  person  from  the 
Holy  Communion  in  a  case  where  the  "  wrong  done  to 
a  neighbour  by  word  or  deed  "  was  a  personal  wrong 
to  the  Minister  himself  (assuming  the  congregation  to 
be  offended),  as,  for  instance,  in  the  case  of  a  slander 
uttered  against  himself,  has  been  questioned.  In  a 
case  occurring  in  the  Diocese  of  New  York  in  1833, 
cited  by  Dr.  Hawks  ("  Con.  and  Can."  p.  369),  Bishop 
Onderdonk  decided  that  Ministers  could  not  exercise 
the  power  of  repulsion  "  in  cases  of  differences  or  dis- 
putes in  which  themselves  or  families  are  parties,"  and 
he  restored  the  communicant  who  had  been  so  repelled. 

In  commenting  on  this  case,  Judge  Hoffman  ("Law 
of  the  Church"  p.  454)  doubts  the  correctness  of  the 
Bishop's  judgment,  and  says  with  great  force:  "The 
rejection  is  warranted  by  the  language  of  that  clause 


THE  RECTOR.  285 

of  the  Rubric,  'doing  wrong  to  a  neighbour  by  word  or 
deed.'  There  is  no  other  redress  open  to  an  assailed 
and  calumniated  Minister  within  the  discipline  of  the 
Church;  and  if  he  may  not  repel,  the  shocking  scene 
may  be  exhibited  of  the  reviler  receiving  the  emblems 
from  one  he  has  slandered,  and  the  reviled  administer- 
ing them,  while  the  feelings  of  resentment  and  dislike 
are  struggling  for  sway  in  his  bosom." 

I  do  not  see  how  the  conclusion  of  Judge  Hoffman 
can  well  be  controverted. 

While  it  seems  clear  that  the  Minister  has  the  power 
to  repel  in  such  a  case,  he  should  exercise  it  only  in 
extreme  cases,  and  undoubtedly,  as  Judge  Hoffman 
says,  there  should  be  some  restriction  placed  upon  the 
exercise  of  the  right  in  such  a  case,  and  a  canonical 
regulation  of  the  matter  might  be  advisable. 

RIGHT  TO   APPOINT  ASSISTANT   MINISTER. 

To  the  Rector  alone  belongs  the  right  of  appointing 
an  Assistant  Minister. 

It  is  the  right  of  the  Vestry  to  determine  the  amount 
of  salary  that  shall  be  paid  to  the  Assistant  Minister 
and  for  what  term  he  shall  be  employed;  it  is  the  right 
of  the  Rector  to  choose  and  appoint  such  Assistant. 

An  Assistant  Minister  in  the  American  Church  an- 
swers, in  general,  to  a  Curate  in  the  English  Church, 
who  is  appointed  by  the  incumbent,  and  nominated  to 
the  Bishop,  who,  if  satisfied  that  he  is  properly  quali- 
fied, grants  him  a  license  and  authority  to  perform  the 
office  of  Curate  in  the  Parish  to  which  he  has  been  ap- 
pointed.— {Blunts  "  Book  of  Church  Laiv"  pp.  217,  222.) 

That  the  Vestry  have  no  power  to  appoint  as  As- 
sistant Minister  any  Minister  whom  they  may  choose, 


266  LA  W  OF  THE  CHURCH. 

is  very  clearly  shown  by  Section  iv.  of  Canon  16 
of  the  Digest,  which  forbids  any  Minister  of  the 
Church  to  officiate  in  any  manner  within  the  paro- 
chial cure  of  another  Clergyman,  unless  he  have 
received  express  permission  for  that  purpose  from 
the  Minister  of  the  Parish.  The  Church  does  not 
permit  the  Wardens  and  Vestrymen  to  say  a  word 
authoritatively  on  the  matter,  unless  the  Rector  be 
absent  from  the  Parish.  She  recognizes  as  sacred 
the  principle  that  the  Clergyman  in  charge  of  a  cure  is 
responsible  to  God  for  the  fidelity  with  which  he  in- 
structs the  people  of  his  cure,  and  that  as  man  cannot 
release  him  from  this  responsibility,  man  should  not 
interfere  to  prevent  him  in  acting  up  to  his  responsi- 
bility. Therefore  she  declares  that  he  "  shall  not  be 
interfered  with  in  the  discharge  of  his  spiritual  func- 
tions among  his  people."  She  will  not  permit  her 
Clergy  to  interfere  ;  much  more  will  she  not  permit  her 
laity  to  interfere. — {Hawks*  "  Con.  and  Can."  p.  281.) 

It  has  already  been  shown  that  the  Rector  has  the 
sole  and  exclusive  right  to  appoint  his  lay  assistants, 
and  the  principles  involved  therein  apply  with  equal 
force  to  his  right  to  appoint  his  clerical  assistants. 

An  Assistant  Minister  has  no  right,  virtute  officii,  to 
be  present  at  meetings  of  the  Vestry,  or  to  preside  at 
such  meetings  in  the  absence  of  the  Rector,  except 
where  special  provision  to  the  contrary  is  made  in  the 
Church  Charter. 

THE   RECTOR'S   DUTIES. 

The  duties  of  a  Rector  are  well  expressed  in  the 
Office  of  "  Ordering  of  Priests,"  wherein  he  solemnly 
promises  that  he  will  give  "  faithful  diligence  always  so 


THE  RECTOR.  287 

to  minister  the  Doctrine  and  Sacraments,  and  the  Disci- 
pline of  Christ,  as  this  Church  hath  received  the  same, 
according  to  the  Commandments  of  God." 

As  Judge  Hoffman  well  says  (u£cc.  Lazv,"  p.  87), 
"The  vow  of  the  Rector  becomes  the  right  of  the  con- 
gregation." They  would  never  have  called  him  to  be 
their  Rector,  save  for  the  promises  and  vows  he  made 
upon  his  ordination  to  the  Priesthood.  So  far  as  he  for- 
gets, or  proves  recreant  to  those  promises  and  vows,  so 
far  does  he  violate  the  rights  of  his  congregation.  At 
the  time  of  his  call,  he  was  believed  to  be  "a  devout 
man,  called  of  God  to  his  office,  sufficiently  learned  for 
his  work,  under  willing  obligations  as  to  belief  and 
public  ministrations,  solemnly  set  apart  to  certain 
duties,  and  clothed  with  certain  spiritual  powers  and 
rights,  and  with  Divine  authority."  He  ceases  not 
to  be  a  Priest  by  becoming  a  Rector,  nor  can  any 
Parish,  by  calling  him  to  be  their  Rector,  exonerate 
him  from  his  covenant  vows  and  obligations.  To  the 
Church  of  Christ  he  is  bounden  "  to  make  full  proof  of 
his  ministry,  according  to  his  covenant,  and,  to  that 
one  Parish  in  particular,  to  make  that  proof  just  there." 

Not  only  is  he  to  give  faithful  diligence  to  the  min- 
istration of  the  Doctrine,  Sacraments  and  Discipline 
of  the  Church,  according  as  she  hath  received  the 
same;  not  only  to  teach  the  people  committed  to  his 
care  to  keep  and  observe  the  same;  not  only  to  main- 
tain and  set  forward,  so  far  as  he  may  be  able,  quiet- 
ness, peace  and  love  among  his  people;  but  also  with 
all  faithful  diligence  to  drive  away  from  the  Church  all 
erroneous  and  strange  doctrines  that  are  contrary  to 
God's  Word,  and  to  remember  the  duty  of  honorable 
deference   to   the   Bishop,   submitting    to    his   godly 


288  LA  W  OF  THE  CHURCH. 

admonitions  and  judgments  in  all  things  where  he  may 
lawfully  counsel. 

"  And  when,  under  changed  convictions,  he  can  no 
longer  live  according  to  his  covenant,  a  good  con- 
science and  the  law  of  honor  will  lead  him  to  make 
the  sacrifice  which  every  honest  man  has  to  make 
towards  societies,  brotherhoods,  guilds,  and  churches, 
whose  obedient  officer  or  member  he  can  no  longer 
remain,  viz.,  to  go  out  by  the  door  ever  open  to  honest 
convictions  and  to  courage  sufficiently  noble  to  act 
up  to  them." 


CHAPTER  VI. 

OF  WARDENS  AND  VESTRYMEN. 

THE  Canons  of  the  General  Convention  repeat- 
edly refer  to  Wardens,  and  in  every  Diocese 
they  are  recognized  as  forming  a  necessary 
constituent  part  of  the  Church  organization;  but  we 
must  look  to  the  English  Ecclesiastical  Law  if  we  would 
rightly  understand  the  duties  of  Wardens,  or  Church 
Wardens  as  they  are  called  in  the  English  Law,  and  also 
in  some  Dioceses  in  this  country. 

By  the  18th,  19th,  85th,  88th,  90th,  109th,  noth, 
1  nth  and  112th  of  the  Canons  of  1603,  the  Church 
Wardens  or  questmen  are  to  enforce  reverence  and 
attention  during  Divine  Service,  to  prevent  loiterers  or 
idle  persons  from  frequenting  the  churchyard  or  porch 
during  such  service,  to  keep  peace  during  any  meeting 
of  the  congregation,  to  take  care  that  excommunicated 
persons  be  kept  out  of  the  church,  to  see  that  the 
churches  be  kept  from  profanation,  and,  in  the  visita- 
tions of  Bishops  and  Archdeacons,  to  present  the  names 
of  persons  so  offending,  as  well  as  the  names  of  all 
schismatics,  non-communicants  at  Easter,  and  all  per- 
sons guilty  of  notorious  crimes  and  scandals. 

Canons  80,  81,  82,  83,  84  (1603),  make  it  the  duty  of 
the  ChurchWardens  to  provide  "Things  Appertaining 
to  Churches,"  such  as  the  "  Great  Bible  "  and  Book  of 
Common  Prayer,  a  Font  of  stone  for  Baptism,  a  decent 
Communion  Table,  a  Pulpit  and  a  Chest  for  Alms,  in 
every  church. 


290  LA  W  OF  THE  CHURCH. 

Canon  85  makes  it  the  duty  of  the  Church  Wardens 
to  see  that  the  churches  are  kept  well  and  sufficiently 
repaired. 

Canon  20  makes  it  the  duty  of  the  Church  Wardens 
of  every  Parish,  with  the  advice  and  direction  of  the 
Minister,  to  provide  the  bread  and  wine  for  the  cele- 
bration of  the  Holy  Communion. 

Canon  28  makes  it  the  duty  of  the  Church  Wardens, 
a*  well  as  of  the  Minister,  to  mark  whether  the  Com- 
municants of  the  Parish  come  to  the  Holy  Communion 
at  least  three  times  in  each  year,  of  which  Easter  shall 
be  one. 

Canon  50  makes  it  the  duty  of  the  Church  Wardens, 
as  well  as  the  Ministers,  to  see  that  strangers  are  not 
admitted  to  preach  without  showing  their  license. 

Blunt,  in  speaking  of  the  "  Office  of  Church  Warden," 
says  ("  Book  of  Church  Law,"  pp.  254,  255)  : 

"  The  name  of  these  Parochial  Officers  is  derived 
from  one  of  their  duties,  that  which  was  originally  the 
only  duty  belonging  to  the  office — i.  e.,  the  custody  or 
guardianship  of  the  church  property  belonging  to  each 
Parish.  In  later  times,  other  duties  accumulated  upon 
Church  Wardens,  so  that  they  have  become  ex-officio 
synodsmen  or  'sidesmen' — the  proper  lay  represen- 
tatives of  their  parishes  at  Synods  or  visitations." 

In  a  note  he  cites  Ayliffe  (Par ego n,  p.  516)  as  au- 
thority for  the  statement  that  "  The  office  of  Church 
Warden,  as  guardian  of  the  goods  of  the  church, 
dates  from  the  later  part  of  the  middle  ages,  when 
the  duty  of  providing  for  the  repairs  of  the  nave  and 
of  furnishing  the  utensils  for  Divine  Service  finally 
settled  on  the  parishioners.  The  synodsmen  are  of 
much  more  ancient  date,  being  derived  from  the  custom 


WARDENS  AND   VESTRYMEN.  291 

observed  at  Episcopal  Synods  of  calling  upon  certain 
grave  laymen  of  the  Diocese  to  report  on  oath  to  the 
Bishop  respecting  its  moral  condition." 

In  speaking  of  the  "  Duties  of  Church  Wardens,"  he 
says  {Idem,  pp.  263,  264,  265):  "It  has  already  been 
mentioned  that  the  office  of  Church  Warden  compre- 
hends two  distinct  classes  of  functions  and  responsi- 
bilities. The  first  of  these  relates  to  the  material 
fabric  and  goods  of  the  church,  of  which  those  appointed 
to  the  office  are  guardians;  the  second  relates  to  the 
oversight  of  the  clergy  and  laity  of  the  Parish  in  respect 
to  their  observance  of,  and  obedience  to,  the  Eccles- 
iastical Laws.  It  should  be  remembered  that  only  in 
certain  specified  cases  have  they  authority  to  act,  and 
that  in  all  others  they  have  only  authority  to  present, 
i  e.,  make  a  formal  report  to  the  Ordinary,  leaving  to 
him  the  responsibility  of  acting  or  not  acting  upon 
their  presentments.  The  distinction  between  these 
two  classes  of  functions  requires  to  be  carefully  kept  in 
view,  as  the  neglect  of  it  has  involved  Church  Wardens 
in  heavy  pecuniary  penalties  in  the  shape  of  costs  in- 
flicted by  the  Ecclesiastical  Courts. 

"  The  active  duties  of  the  office  are  chiefly  those  of 
providing  necessaries  for  Divine  Service,  maintaining 
order  during  its  performance,  keeping  the  church  and 
its  accessories  in  proper  condition,  and  taking  charge 
of  the  benefice  during  vacancies.  This  last  duty  is  not, 
however,  thrown  on  them  by  the  mere  fact  of  their 
appointment,  but  by  the  act  of  the  Ordinary,  who 
usually  chooses  them  for  this  office,  and  commits  it  to 
them  by  a  formal  instrument  of  sequestration. 

**  Whatever  is  needed  for  use  in  the  services  of  the 
Church  was,  by  the  old  Ecclesiastical  Law,  to  be  pro- 


292  LA  W  OF  THE  CHURCH. 

vided,  at  the  cost  of  the  parishioners,  by  the  Church 
Wardens.  When  a  church  is  once  erected  and  prop- 
erly furnished,  these  current  necessaries  are,  indeed, 
very  few.  They  may  be  stated  as  chiefly  consisting 
of  the  vestments  of  the  officiating  clergy,  the  bread 
and  wine  required  for  use  in  the  Holy  Communion,  the 
lights  necessary  for  Evening  Service,  together  with 
the  salary  of  the  parish  clerk,  the  organist  (when  there 
is  one),  and  the  attendant  or  attendants  required  for 
the  orderly  use  of  the  church  by  the  Minister  and  the 
congregation." 

In  speaking  of  the  "Duties  during  Divine  Service  "  of 
Church  Wardens,  he  says  {Idem,  pp.  2^5,  266)  :  "The 
only  act  by  which  Church  Wardens  officially  take  part 
in  Divine  Service  is  that  of  collecting  the  alms  of  the 
congregation,  and  bringing  them  to  the  Priest  for 
presentation  upon  the  Altar.  Even  this  is  not  essen- 
tially their  duty,  as  the  rubric  names  '  the  Deacons, 
Church  Wardens,  or  other  fit  persons  appointed  for 
that  purpose';  but  where  the  Deacons  do  not  collect 
them,  no  fitter  persons  can  be  found  than  the  repre- 
sentative men  of  the  lay  parishioners,  especially  as 
they  have  authority  in  their  distribution;  for  by  the 
rubric  at  the  end  of  the  Communion  Service,  'After  the 
Divine  Service  is  ended,  the  money  given  at  the  Offer- 
tory shall  be  disposed  of  to  such  pious  and  charitable 
uses  as  the  Minister  and  Church  Wardens  shall  think  fit. 
Wherein  if  they  disagree,  it  shall  be  disposed  of  as  the 
Ordinary  shall  appoint.'  " 

He  also  refers  to  the  Canons  making  it  the  duty  of 
the  Church  Wardens,  personally,  or  by  their  deputies, 
to  maintain  order  during  Divine  service,  and  says 
{Idem,  p.  266):    "It  has  been   repeatedly  ruled  that 


WARDENS  AND   VESTRYMEN.  293 

Church  Wardens  are  authorized,  ex-officio,  to  carry  out 
the  principles  set  forth  in  these  Canons,  by  doing  what 
they  can  to  prevent  disorder  or  interruption  of  Divine 
Service;  and  that  if  no  other  means  avail,  they  are 
empowered  to  turn  the  offender  out  of  the  church, 
provided  they  use  no  unnecessary  violence  in  doing 
so." — {Reynolds  v.  Monkton,  2  M.  &  R ,  384;  Williams 
v.  Glenister,  2  Barn.  &  Cress.,  699;  Burton  v.  Henson 
et  a  I.,  10  Meison  &  Welsby,  104.) 

In  regard  to  the  assignment  of  seats  to  parishioners, 
he  says  (Idem,  pp.  268,  269):  "Associated  with  the 
duty  of  keeping  order  in  church  is  that  of  seeing  that 
the  parishioners  are  provided  with  seats  in  an  orderly 
manner.  This  duty  devolves  upon  the  Church  War- 
dens as  officers  of  the  Ordinary,  whose  authority  in  the 
matter  is  final.  By  the  Common  Law  every  parish- 
ioner is  entitled  to  a  seat  in  his  Parish  Church,  and  in 
1841  Baron  Rolfe  expressed  his  opinion  'that  the 
Church  Wardens  have  a  right  to  exercise  a  reasonable 
discretion  in  directing  where  the  congregation  shall 
sit,' — even  to  the  extent  of  removing  a  person  from  one 
seat  to  another  if  thought  more  convenient,  and  done 
without  unnecessary  force." — {Reynolds  v.  Monkton,  2 
M.&R.,  384.) 

"In  1887,  Mr.  Justice  A.  L.Smith  held  that  in  a 
Church  where  all  the  seats  were  free,  it  was  '  well 
within  the  scope,  power,  and  authority  of  Church  War- 
dens to  direct  where  a  certain  class  shall  go,  and  a 
certain  class  shall  not  go.'  In  that  case  the  Church 
Wardens  were  seeking  to  prevent  all  the  young  men 
from  sitting  together.  {As her  v.  Caleraft,  L.  R.  18  Q. 
B.  D.,  607.)  In  Taylor  v.  Timson  (Z.  R.  20  Q.  B.  D., 
671),  Mr.  Justice  Stephen  held  that  a  Church  Warden 


294  LA  W  OF  THE  CHURCH. 

had  no  right  to  exclude  any  parishioner  from  church 
on  the  ground  that  there  was  not  sitting  room  for  him. 
Whether  the  assignment  of  seats  is  made  as  a  yearly 
arrangement,  whether  it  is  made  at  the  time  when 
Divine  Service  is  about  to  be  or  is  being  celebrated, 
or  whether  the  power  to  make  it  is  only  used  in  dis- 
puted cases — the  seats  being  ordinarily  considered  free, 
and  open  to  the  first  comer — are  matters  entirely 
within  the  discretion  of  the  Church  Wardens,  subject 
to  the  control  of  the  Ordinary." 

In  regard  to  "  The  Care  and  Repair  of  the  Church  and 
its  Accessories  "  he  says  {Idem,  pp.  270-72) :  "  The  mov- 
able goods  of  the  Church  are,  by  the  Common  Law, 
vested  in  the  Church  Wardens,  as  a  quasi  corporation 
(for  the  benefit  of  the  parishioners  at  large),  whose  con- 
tinuity is  preserved  notwithstanding  the  annual  change 
in  the  persons  constituting  it.  (Rex  v.  Martin  Rice, 
1  Lord  Raym.,  138 ;  Jackson  v.  Adams,  2  Bingh.  N.  C, 
402.)  ...  In  the  same  capacity,  they  are  respons- 
ible for  the  good  preservation  of  the  church  fabric,  the 
churchyard,  and  the  church  goods  ;  the  chancel  being 
mostly  excepted,  as  the  responsibility  for  its  preserva- 
tion and  repair  rests  upon  the  Rector.  As  regards  the 
church  and  churchyard,  these  duties  are  laid  down  in 
the  85th  Canon  of  1603,  which  enacts  that  '  The  Church 
Wardens  or  questmen  shall  take  care  and  provide  that 
the  churches  be  well  and  sufficiently  repaired,  and  so 
from  time  to  time  kept  and  maintained,  that  the  win- 
dows be  well  glazed,  and  that  the  floors  be  kept  paved, 
plain,  and  even,  and  all  things  there  in  such  an  orderly 
and  decent  sort,  without  dust,  or  anythingthat  may  be 
either  noisome  or  unseemly,  as  best  becometh  the  house 
of  God,  and  is  prescribed  in  an  homily  to  that  effect. 


WARDENS  AND   VESTRYMEN.  295 

The  like  care  they  shall  take  that  the  churchyards  be 
well  and  sufficiently  repaired,  fenced,  and  maintained 
with  walls,  rails,  or  pales,  as  have  been  in  each  place 
accustomed,  at  their  charges  unto  whom  by  law  the 
same  appertaineth  ;  but  especially  they  shall  see  that 
in  every  meeting  of  the  congregation  peace  be  well 
kept,  and  that  all  persons  excommunicated,  and  so  de- 
nounced, be  kept  out  of  the  church.' 

"  This  will  include  whatever  is  permanently  affixed 
to  the  freehold — such  as  walls,  fences,  windows,  gates 
and  doors,  roof,  floor,  drains,  stoves  and  flues,  etc.; 
and  also  the  font,  pulpit,  and  seats,  together  with  every- 
thing that  can  be  reasonably  considered  as  substan- 
tially part  of  the  building  and  its  appurtenances.  .  .  . 
The  movable  goods  of  the  church,  which  the  Church 
Wardens  are  bound,  on  behalf  of  the  parishioners,  to 
preserve  and  repair,  consist  of  such  things  as  are  abso- 
lutely enjoined  for  use  in  Divine  Service,  and  of  other 
things  which  have  been  in  use  from  time  immemorial, 
or  have  been  accepted  by  them  for  the  use  of  the 
church.  Of  the  first  class  are  the  vestments  of  the 
Ministers,  the  sacred  vessels  and  other  furniture  of  the 
altar,  with  the  books  used  in  Divine  Service.  Of  the 
second  class  are  the  organ,  the  bells,  the  bier,  the 
clock,  the  vestry  furniture,  and  such  like — all  of  which 
are  used  for  the  advantage  of  the  parishioners,  and 
ought  therefore  to  be  kept  in  order  by  them." 

Such  in  brief  is  the  law  regulating  the  rights  and  du- 
ties of  Church  Wardens  in  the  English  Church,  and 
such,  I  apprehend,  with  the  exception  of  property 
rights,  which  here  belong  to  the  Vestry  in  their  cor- 
porate capacity,  constitutes  the  basis  of  the  law  regu- 
lating the  rights  and  duties  of  Church  Wardens  and 


296  LAW  OF  THE  CHURCH. 

Wardens  in  the  American  Church,  on  the  principle 
that  the  law  of  the  English  Church  continues  to  be  the 
law  of  the  American  Church,  so  far  as  it  is  applicable 
to  our  circumstances,  and  not  superseded  by  enact- 
ments of  our  own. 

The  Church  has  never  yet  legislated  upon  this  sub- 
ject (with  the  exception  of  a  few  Dioceses,  which  have 
simply  recognized  by  canonical  enactment  some  of 
the  principles  of  the  Canons  of  1603),  and  her  neglect 
or  refusal  to  so  legislate  evidences  the  mind  of  the 
Church  that  the  rights  and  duties  of  Church  Wardens 
and  Wardens  should  remain  the  same  as  in  the  English 
Church,  so  far,  of  course,  as  they  are  applicable  to 
our  condition  and  not  in  conflict  with  the  Statute  Law 
of  the  land. 

A  further  evidence  that  such  was  the  mind  of  the 
Church  is  the  report  made  by  the  Rev.  Dr.  Croes — 
afterwards  Bishop  of  New  Jersey — in  conjunction  with 
the  Rev.  Andrew  Fowler,  to  the  Convention  of  that 
Diocese  in  1804,  which  went  very  thoroughly  into  the 
subject;  so  much  so  that  Bishop  Doane,  his  successor 
in  the  Bishopric  of  New  Jersey,  spoke  of  it  "  as 
embodying  the  whole  practical  wisdom  on  the  sub- 
ject." 

This  report  received  the  endorsement  of  Judge  Hoff- 
man in  his  "Law  of  the  Church"  {pp.  267,  270),  and  was 
cited  by  The  Joint  Committee  on  tlie  Function  of  Rector, 
Wardens,  arid  Vestrymen,  etc.,  in  their  report  to  the 
General  Convention  of  1880,  as  presenting  "the  duties 
of  Church  Wardens  in  a  clear  manner."  They  also 
remark  that  while  some  of  the  requirements  have  be- 
come inoperative  and  useless,  yet  "  the  general  drift 
of  them  still  remains  in  force." 


WARDENS  AND   VESTRYMEN.  297 

The  report  to  the  New  Jersey  Convention  of  1804  is 
as  follows : 

"  The  duties  of  Church  Wardens  are  : 

1.  To  provide  for  the  churches  of  which  they  have  the 

care  a  Prayer  Book  and  Bible  of  suitable  size,  at 
the  expense  of  the  Parish. 

2.  To   make  the  collections  which  are  usual   in   the 

Parishes. 

3.  To  provide,  at  the  expense  of  the  congregation,  a 

sufficient  quantity  of  fine  white  bread,  and  good, 
wholesome  wine,  for  the  celebration  of  the  Lord's 
Supper. 

4.  To  provide  a  proper  book,  at  the  charge  of  the  Par- 

ish, in  which  shall  be  written  by  the  Rector,  or  in 
case  of  vacancy,  by  one  of  the  Wardens,  the  name 
of  every  person  baptized,  married  and  buried  in 
the  church,  and  the  time  when  such  baptism, 
marriage  and  burial  took  place. 

5.  To  present  to  the  Bishop  of  the  Diocese,  or,  if  there 

is  no  Bishop,  to  the  Chairman  of  the  Standing 
Committee  of  the  Church  in  the  State,  every  Priest 
and  Deacon  residing  in  the  Parish  to  which  they 
belong,  who  has  voluntarily  relinquished  his  sa- 
cerdotal office,  and  uses  such  employments  as  be- 
long to  laymen. 

6.  To  take  care  that  the  church  of  which  they  have 

the  charge  be  kept  in  good  repair,  well  glazed  and 
free  from  dirt  and  dust,  as  becomes  the  House  of 
God;  that  the  churchyard  be  decently  fenced,  and 
to  cause  that  order  be  preserved  during  Divine 
Service. 

7.  To  diligently  see  that    the   parishioners  resort  to 

church  on  Sundays,  and  there  continue  the  whole 


298  LA  W  OF  THE  CHURCH. 

time  of  Divine  Service;  and  to  gently  admonish 
them  when  they  are  negligent. 

8.  To   prevent   any   idle    persons    continuing   in    the 

churchyard  or  porch  during  Divine  Service,  by 
causing  them  either  to  enter  the  church  or  depart 
— and  to  prohibit  the  sale  of  anything  in  the  yard. 

9.  To  give  an  account  to  the  Corporation  of  the  Church, 

if  it  has  no  Treasurer,  at  the  expiration  of  each 
year,  of  the   money  they  have  received,  and  what 
they  have  expended  in   repairs,   etc.;  and  when 
they  go  out  of  office,  to  give  a  fair  account  of  all 
their  money  transactions  relative  to  the  Church, 
and   deliver  up   to   their  successors   the    church 
property  in  their  possession." 
This  report  most  obviously  embodies  the  main  pro- 
visions, either  in  whole  or  in  part,  of  the   18th,  19th, 
20th,  76th,  80th,  85th,  88th,  and  90th,  of  the  Canons 
of  1603. 

Dr.  Richey,  in  "  The  CJiurcJimans  Handbook"  {pp. 
28,  29),  says: 

"  The  'Church  Wardens,'  as  their  name  indicates,  are 
the  guardians  and  keepers  of  the  church,  under  the 
Rector,  and  representatives  of  the  body  of  the  Parish. 
They  are  to  see  to  the  church  being  kept  in  good  re- 
pair, and  are  to  preserve  order  and  decorum  in  and 
around  the  church  building  during  the  time  of  Divine 
Service.  It  is  made  their  duty  to  provide  a  proper 
Record  Book  for  the  Parish,  and  to  cause  to  be  copied 
therein  all  documents  bearing  on  the  organization  and 
history  of  the  Parish  ;  they  are  to  collect  and  present 
the  alms  and  contributions  made  in  the  church.  In 
the  event  of  a  vacancy  in  the  Rectorship,  the  Wardens 
are  the  keepers  of  the  Record  Book,  and  they  are  to 


WARDENS  AND   VESTRYMEN.  399 

present  to  the  Bishop  the  report  called  for  by  Canon 
at  the  time  of  the  Annual  Convention." — (See  also 
Hoffmarfs  "Ecc.  Law" pp.  90-92.) 

In  the  absence  of  any  law,  statutory  or  canonical, 
regulating  the  duties  of  Wardens,  it  seems  clear  that 
the  provisions  of  the  Canons  of  1603,  except  where  they 
are  obviously  inoperative  or  useless,  are  still  of  force 
in  the  American  Church. 

The  General  Convention  has  also  made  it  the  duty 
of  the  Wardens  to  give  notice  to  the  Bishop  of  the 
election  of  a  Minister  to  the  Rectorship  of  a  Parish;  to 
give  a  certificate  of  transfer  to  a  communicant  of  the 
Church  removing  from  the  Parish,  in  case  there  be  no 
Rector  thereof;  and  to  collect,  or  cause  to  be  collected, 
the  alms  of  the  congregation  in  time  of  Divine  service; 
it  is  also  made  the  duty  of  the  Senior  Warden,  at  the 
time  of  the  institution  of  a  Rector  of  the  Parish,  to 
present  the  keys  of  the  church  to  the  new  incumbent, 
and  to  receive  and  acknowledge  him  in  the  name  and 
behalf  of  the  Parish,  as  its  Rector. 

QUALIFICATIONS  OF  WARDENS. 
The  qualifications  required  for  the  office  of  Warden 
have  already  been  sufficiently  commented  upon  in  a 
previous  chapter.  With  very  few  exceptions  the  vari- 
ous Dioceses  require  that  a  person  must  be  a  commun- 
icant to  be  eligible  for  the  office  of  Warden.  The 
grave  and  responsible  duties  devolving  upon  a  Warden 
should  certainly  never  be  committed  to  one  who  is  not 
a  communicant  of  the  Church. 

HOW   APPOINTED. 
The  mode  of  election  or  appointment  of  Wardens 
varies  in  the  different  Dioceses,  and  is  governed   by 


3oo  LA  IV  OF  THE  CHURCH. 

the  Statute  Law  of  the  State,  or  the  Canon  Law  of  the 
Diocese. 

In  some  Dioceses  both  Wardens  are  elected  by  the 
qualified  voters  of  the  Parish  ;  in  others  by  the  Vestry, 
from  among  their  own  number ;  in  others,  the  Rector 
has  the  right  to  appoint  one  Warden,  and  the  Parish 
or  Vestry,  as  the  law  may  provide,  elects  the  other;  in 
still  others,  the  Rector  nominates  one  Warden,  and 
the  Vestry  elect  both  Wardens. 

In  the  English  Church,  the  ordinary  law  by  which 
the  appointment  of  Church  Wardens  is  regulated  is 
that  of  the  89th  Canon  (1603):  "All  Church  Wardens  or 
questmen  in  every  Parish  shall  be  chosen  by  the  joint 
consent  of  the  Minister  and  the  parishioners,  if  it  may 
be;  but  if  they  cannot  agree  upon  such  a  choice,  then 
the  Minister  shall  choose  one,  and  the  parishioners 
another,  and  without  such  a  joint  or  several  choice, 
none  shall  take  upon  them  to  be  Church  Wardens  ; 
neither  shall  they  continue  any  longer  than  one  year 
in  that  office,  except  perhaps  they  be  chosen  again  in 
like  manner." 

The  common  custom  is  for  the  incumbent  to  choose 
one  Warden,  and  the  parishioners  the  other. — (Blunfs 
"  Book  of  Church  Law"  p.  258.) 

The  joint  Committee  on  the  Functions  of  Rector, 
Wardens,  and  Vestrymen,  etc.,  in  their  report  to  the  Gen- 
eral Convention  of  18  So,  recommended  the  enactment 
of  the  following  amendment  to  the  Canon  "Of  Con- 
gregations and  Parishes." 

"  (2)  In  every  Parish,  at  the  Annual  Election,  War- 
dens and  Vestrymen  shall  be  chosen  as  follows : — 

The  Rector,  or  Minister  in  charge,  shall  choose  one 
Warden,  and  the  Congregation  the  other. 


WARDENS  AND   VESTRYMEN.  301 

Vestrymen  shall  be  chosen  by  the  Congregation. 

Both  Wardens,  and  a  majority  of  the  Vestrymen, 
shall  be  recognized  Communicants  of  the  Parish. 

The  qualifications  of  voters  shall  be  as  prescribed  by 
the  Conventions  of  the  several  Dioceses." 

It  is  certainly  more  consonant  with  the  long  estab- 
lished usages  of  the  Church,  and  with  the  general  prin- 
ciples of  Ecclesiastical  Law,  for  the  Rector  to  appoint 
one  Warden,  and  the  Parish  to  elect  the  other.  War- 
dens are  usually  denominated  in  the  different  Dioceses 
as  Senior  and  Junior  Wardens,  when  both  Wardens 
are  chosen  by  the  Parish  or  Vestry;  or  Rector's  War- 
den and  Parish  or  Accounting  Warden,  when  one 
Warden  is  appointed  by  the  Rector,  and  the  other  by 
the  Parish  or  Vestry. 

While  the  Church  has  recognized  the  title  of  Senior 
Warden  in  the  "  Institution  Office,"  and  in  the  Canons 
of  most  of  the  Dioceses,  the  name  has  in  it,  usually, 
more  of  honor  than  of  practical  import. 

Unless  the  Statute  or  Canon  Law  of  a  Diocese  gives 
him  such  right,  the  Senior  Warden  has  no  legal  pri- 
ority of  right  to  preside  at  a  Vestry  meeting  in  the 
absence  of  the  Rector,  although  that  courtesy  is 
usually  extended  toliim.  Under  the  English  Eccles- 
iastical Law  there  is  no  one  who  is  ex-officio  entitled 
to  preside  at  a  Vestry  meeting,  in  the  absence  of  the 
Rector,  but  a  Chairman  must  be  elected  by  those 
present. — (Blunt* s  "  Book  of  Church  Law,"' p.  300.) 

While  many  of  the  Dioceses  provide  by  Canon  for 
the  appointment  or  election  of  a  Senior  Warden,  others, 
though  recognizing  in  their  Canons  the  title  of  Senior 
Warden,  simply  provide  for  the  election  of  two  War- 
dens, without  designating  which  of  such  Wardens  shall 


3o2  LA  IV  OF  THE  CHURCH. 

be  called  the  Senior  Warden.  In  such  cases  it  is  the 
general  custom  to  denominate  the  Warden  first  chosen, 
or  whose  name  stands  first  on  the  ticket  or  ballot,  as 
the  Senior  Warden,  but  there  is  no  other  authority, 
save  custom,  for  such  designation  in  those  Dioceses 
where  no  provision  is  made  for  the  appointment  or 
election  of  a  Senior  Warden. 

BOTH   WARDENS   MUST   ACT. 

Unless  the  Wardens  are  expressly  authorized  to  act 
separately,  they  must  act  together,  in  order  to  perform 
a  valid  act.  This  is  also  the  English  rule.  {Blunfs 
"Book  of  Church  Law"  p.  270,  note,  citing  1  Rol.  Abr. 
Chev.,  393;  Star  key  v.  Barton,  Cro.Jac.,  24.  See  also 
Prideauxs  "Church  Wardens  Guide," p.  335.)  This,  of 
course,  does  not  prevent  a  Warden  from  exercising 
such  powers  as  may  be  specially  delegated  to  him  by 
the  Rector,  or  by  the  Vestry,  or  as  may  be  consented 
to  by  the  other  Warden.  In  many  of  the  Dioceses  the 
Canons  provide  that  the  Senior  Warden  shall  pre- 
side at  meetings  of  the  Vestry  in  the  absence  of  the 
Rector. 

In  the  Dioceses  of  Delaware,  Ohio,  and  Southern 
Ohio,  the  Canons  provide  that  in  the  absence  of  the 
Rector,  the  Senior  Warden  may  call  meetings  of  the 
Vestry. 

In  the  Diocese  of  Alabama,  the  Canons,  after  speci- 
fying that  there  shall  be  two  Wardens  in  each  organized 
Parish,  who  shall  always  be  communicants,  not  under 
repulsion,  provide  that  "  they  shall  be  distinguished  as 
Senior  and  Junior,  although  all  duties  belong  equally 
to  both ;  for  every  duty  which  may  be  assigned  to  the 
Senior  Warden,  devolves,  in  his  absence  or  disability, 


WARDENS  AND   VESTRYMEN.  303 

on  the  Junior,  and  both  shall  be  held  responsible  for 
the  performance  of  the  duty." 

In  the  Diocese  of  Springfield  it  is  made  the  duty,  by 
Canon,  of  the  Rector's  Warden  <:  to  look  after  the  per- 
sonal interests  of  the  Rector,  to  see  that  his  salary  is 
promptly  and  fully  paid,  that  provision  is  made  for 
supplying  his  place  in  case  of  his  necessary  absence, 
and  generally  to  do  all  things  that  may  be  necessary  to 
promote  his  efficiency  in  the  discharge  of  his  duties." 

It  has  already  been  shown  that,  in  the  absence  of 
any  express  provision  in  the  Statute  or  Canon  Law  to 
the  contrary,  the  presence  of  one  Warden  is  necessary 
to  constitute  a  legal  meeting  of  the  Vestry. 

In  the  State  of  New  York,  the  Statute  Law  {Chap. 
723  of  the  Laws  of  1895)  provides  that,  in  order  to  con- 
stitute a  quorum  of  the  Vestry,  there  must  be  present 
the  Rector,  at  least  one  of  the  Church  Wardens,  and 
a  majority  of  the  Vestrymen,  or  the  Rector,  both 
Church  Wardens  and  one  less  than  a  majority  of  the 
Vestrymen.  Before  the  enactment  of  the  Act  of  1895, 
making  the  above  provision  for  a  quorum  in  case  of 
the  presence  of  both  Wardens  at  a  Vestry  meeting, 
the  Chancellor  of  the  Diocese  of  Western  New  York 
gave  as  his  opinion  in  a  case  submitted  to  him,  that 
when  both  Wardens  were  present  at  a  Vestry  meeting, 
one  of  the  Wardens  could  be  counted  as  a  Vestryman 
for  the  purpose  of  making  a  quorum. 

This  rule  would  doubtless  be  held  to  be  valid  in 
those  Dioceses  where  the  Statute  or  Canon  Law  sim- 
ply provides  that  the  majority,  or  the  "  major  part"  of 
the  whole  number  composing  the  Vestry  shall  consti- 
tute a  quorum;  as,  for  instance,  if  a  Vestry  consisted 
of  a  Rector,  two  Wardens  and  seven  Vestrymen,  the 


304  LA  W  OF  THE  CHURCH. 

presence  of  six  of  such  members  would  be  necessary 
to  constitute  a  quorum  of  such  Vestry.  This  require- 
ment would  be  fulfilled  by  the  presence  of  the  Rector, 
one  Warden  and  four  Vestrymen,  or  the  Rector,  both 
Wardens  and  three  Vestrymen. 

WARDENS   HAVE   THE   CUSTODY   OF   THE   CHURCH 
UNDER   THE   RECTOR. 

In  order  to  fulfil  their  duties  relating  to  the  preserva- 
tion and  repair  of  the  church,  and  in  providing  the 
necessaries  of  Divine  Service,  it  is  obvious  that  the 
Wardens  must  have  access  to  the  church,  but  the 
possession  and  control  of  the  church  being  in  the 
Rector,  they  can  have  access  thereto  only  with  the  con- 
sent of  the  Rector.  While  they  have  the  custody  of 
the  church  and  of  its  goods,  they  have  such  custody 
only  under  the  Rector. 

This  is  a  well  settled  principle  of  the  English  Eccles- 
iastical Law,  and  is  also  the  law  of  the  American 
Church.  Blunt  {"Book  of  Church  Lazu,"  pp.  273,  274) 
lays  down  the  rule  as  follows  :  "  The  whole  church 
and  churchyard  being  vested  in  the  Rector  or  Vicar, 
as  his  freehold,  access  to  either  is  entirely  under  his 
control.  ...  In  cases  where  Church  Wardens 
have  possessed  themselves  of  duplicate  keys,  or  in  any 
way  obtained  access  to  the  church,  chancel,  or  belfry, 
without  the  permission  of  the  incumbent,  they  have 
been  severely  censured  by  the  judges,  ordered  to  de- 
liver up  the  keys,  and  condemned  in  costs. — (Citing 
Redhead  v.  Wait  and  others,  6  Law  Times  \N.  5.],  580; 
Dewdny  v.  Good&r  Ford,  7  Jur.  \N.  5.],  637;  Harwardv. 
Arden,Ecc.  Gaz.,  May  and  Sept.,  1867;  Ritchingsv.  Cor- 


WARDENS  AND   VESTR  YMEN. 


305 


dingley,  Law  Rep.  3  A  dm.  and  Ecc.  p.ny,  Sir  R.  Philli- 
more's  "Ecc/.  Judgments"  p.  133;  Marshall  v.  Andrew, 
Ecc.  Gas.,  Aug.,  1871.) 

"  In  all  that  is  done  by  Church  Wardens  this  plain 
principle  of  law  should  therefore  be  strictly  recog- 
nized, and  access  to  the  church  obtained,  by  them- 
selves or  their  deputies,  only  by  the  expressed  or  im- 
plied permission  of  the  incumbent.  If  he  refuses  it,  so 
as  to  prevent  them  from  doing  their  duty,  they  must 
complain  to  the  Ordinary." 

In  the  case  of  Lee  v.  Mathews  (3  Hagg.  Ecc.  Rep.,  169), 
Sir  John  Nicoll  says  :  "  The  Minister  has,  in  the  first 
instance,  the  right  to  the  possession  of  the  key,  and 
the  Church  Wardens  have  only  the  custody  of  the 
church  under  him.  If  the  Minister  refuses  access  to 
the  church  on  fitting  occasions,  he  will  be  set  right  on 
application  and  complaint  to  higher  authorities." 

"A  spiritual  Rector  has,  when  inducted,  the  cor- 
poral possession  of  the  church  for  the  use  of  the 
parishioners,  subject  to  the  control  of  the  Ordi- 
nary."— {Griffith  v.  Dighton  &  Davis,  33  L.  J.,  C.  L. 
\N.  S.],  29.) 

While  the  possession  and  control  of  the  church 
buildings  belong  to  the  Rector,  yet  are  they  confided 
to  him  for  certain  well  defined  purposes  ;  and  for  these 
purposes  he  is  bound  to  give  access. 

He  must  give  access  to  the  church  for  such  duties 
as  devolve  upon  the  Wardens,  with  respect  to  the 
care  thereof,  and  the  providing  of  the  necessaries  for 
Divine  service. — (Blunt's  "  Book  of  Church  Law,"  pp. 
327,  328.) 

The  relative  rights  of  Rector  and  Wardens  to  the 
custody    and  control  of   Church    buildings  are  more 


3o6  LA  W  OF  THE  CHURCH. 

fully  considered  in  the  preceding  chapter,  under  the 
Rector's  "  Right  to  the  Keys  and  Control  of  the  Church 
and  other  Parish  Buildings,"  to  which  reference  may  be 
had  for  the  decisions  of  the  American  Courts  on  this 
subject. 

VESTRYMEN. 

In  England,  except  in  cases  of  special  customs, 
there  was  formerly  no  separate  body  of  the  parish- 
ioners known  as  a  Vestry.  All  the  parishioners  when 
duly  convened  for  Parish  purposes  were  described  as 
assembled  in  Vestry.  In  a  few  Parishes,  especially  in 
the  city  of  London,  there  existed,  by  custom,  a  repre- 
sentative body  called  a  "  Select  Vestry."  "  These  Se- 
lect Vestries,  as  a  general  rule,  entirely  supersede  the 
ordinary  Vestry.  In  large  towns  select  Vestries  may 
be  appointed  under  the  Act  I  and  2,  Will.  IV.,  ch.  60." 
— (B/unt's  "Book  of  Church  Law" p.  303.) 

The  name  Vestry  is  derived  from  the  former  cus- 
tom of  the  parishioners  to  meet  for  the  transaction  of 
parochial  business  in  the  room  where  the  Clergyman 
put  on  his  vestments,  called  the  Vestry.  In  the  Col- 
onies the  method  of  the  parishioners  acting  through  a 
select  delegated  body  was  used  from  a  very  early  date. 
In  New  York,  for  example,  by  the  Duke  of  York's 
laws  of  1664,  it  was  provided  that  eight  of  the  most  able 
men  of  each  Parish  should  be  chosen  by  the  major  part 
of  the  householders  as  overseers  for  the  orderly  man- 
agement of  the  parochial  affairs  of  the  Parish,  out  of 
which  numbers  should  yearly  be  chosen  the  two  Church 
Wardens.  So  in  Virginia,  Vestries  were  part  of  the 
Church  organization  at  a  very  early  date. — {Hoffman's 
"Law  of  the  Church?  pp.  271,  272.) 


WARDENS  AND   VESTRYMEN.  307 

In  Maryland,  by  an  Act  of  1692,  the  freeholders  of 
each  Parish  were  to  meet  and  appoint  six  Vestrymen. 
The  Vestrymen  were  also  made  bodies  corporate  to 
receive  and  hold  property,  with  power  to  fill  all  va- 
cancies. {Hawks'  "Eccl.  Cont."  Vol.  II.,  pp.  71,  72.) 
In  nearly  all  of  the  Charters  granted  to  Colonial 
Churches  provision  is  made  for  the  election  of  a  certain 
number  of  Vestrymen. 

It  is  obvious  that  the  Vestry  system  of  the  Colonial 
Church,  and  hence  of  the  American  Church,  was 
modelled  after  the  Select  Vestries  of  the  English 
Church. 

QUALIFICATIONS   OF  VESTRYMEN. 

The  qualifications  of  Vestrymen  have  already  been 
commented  upon  in  a  previous  chapter,  and,  as  was 
then  stated,  they  differ  very  materially  in  the  different 
Dioceses.  In  some  States  the  qualifications  for  the 
office  of  Vestryman  are  prescribed  by  Statute,  in 
others,  the  Statute  is  silent  in  the  matter,  or  else 
provides  that  they  shall  be  conformable  to  the  re- 
quirements of  the  Church  or  of  the  Convention  of 
the  Diocese  to  which  the  Parish  choosing  them  be- 
longs. 

Vestrymen  have  no  separate  or  individual  power,  and 
can  only  act  in  Vestry  assembled.  {Appeal  of  Ritten- 
house,  etc.,  21  At.  Rep.,  254;  Peoples  Bank  v.  St.  Anthonys 
Church,  logN.  Y.,  512;  United  Brethren,  etc.,v  Vandu- 
sen,n  Wis.,  5451  Morawitz  on  Corp.,  Sec.  531;  1  Water- 
man on  Corp.,  Sec.  70.)  One  exception  to  the  above 
rule  should,  however,  be  noted.  It  has  been  decided 
{Beckett  v.  Lawrence,  7  Abb.  Pr.  Rep.  [N.  S.],  403)  that 


3o8  LA  W  OF  THE  CHURCH. 

Vestrymen  have  power  to  preserve  order,  and  to  re- 
move disturbers  during  times  of  Divine  Service  in  the 
church. 

THEIR  DUTIES. 

The  duties  of  Vestrymen  have  been  well  set  forth  in 
the  report  of  the  Rev.  Dr.  Croes  to  the  Convention  of 
New  Jersey  before  referred  to. 

The  report  in  so  far  as  it  relates  to  the  duties  of 
Vestrymen  is  as  follows  : 

"  The  duties  of  Vestrymen,  or  Trustees,  are : 

"  To  transact  all  the  temporal  business  of  their  re- 
spective churches — to  collect  the  moneys  stipulated  to 
be  paid  to  the  Minister;  and,  at  the  expiration  of  any 
year,  if  there  be  a  deficiency  of  the  sum  requisite,  to 
give  information  thereof  to  the  congregation,  convened  * 
for  that  purpose,  and,  if  necessary,  to  enforce  the  pay- 
ment of  the  sum  deficient ;  also,  in  the  absence  of  the 
Wardens,  to  do  the  several  duties  which  are  more  par- 
ticularly assigned  to  them."  It  may  also  be  stated, 
that  it  is  the  duty  of  a  Vestryman  to  attend  all  meet- 
ings of  the  Vestry  duly  called;  should  he  intentionally 
absent  himself  from  such  meetings,  a  writ  of  manda- 
mus will  lie  to  compel  him  to  attend. — {People  ex  re/. 
Kenney  v.  Winans  et  al.t  29  State  Rep.  \_N.  K],  651.) 

Wardens  and  Vestrymen  should  ever  bear  in  mind 
that  to  the  Rector  alone,  under  the  Bishop,  belongs 
the  administration  of  the  Sacraments,  Ordinances, 
Worship,  and  all  other  matters  of  a  purely  spiritual 
character,  and  that  for  these  duties  he  was  ordained, 
and  by  them  chosen.  They  are  his  lay  assistants,  and 
can  aid  him  most  effectually  in  the  performance  of  those 
duties.     As   the   late  Bishop   De  Lancey,  of  Western 


WARDENS  AND   VESTRYMEN.  309 

New  York,  in  a  Pastoral  Letter  well  said:  "The 
whole  body — Wardens,  Vestrymen,  and  people — may 
strengthen  the  hands  of  the  Rector  by  punctuality  in 
attendance  at  the  sanctuary,  by  full  responses  in  the 
services,  by  devout  attention  to  the  instructions  of  the 
pulpit,  by  regularly  communicating,  by  observance  of 
festivals  and  fasts,  by  interest  in  the  ordinances  admin- 
istered, and  by  presenting  the  uniform  example  of 
earnest,  devout,  holy,  and  consistent  members  of  the 
Parish." 


SUPPLEMENT. 
•Rules  of  ©rfcer. 


RULES  OF  ORDER. 

IT  is  not  the  author's  purpose  to  set  forth  herein  a  complete 
manual  of  parliamentary  law,  only  to  give  such  "  Rules  of 
Order  "  as  may  be  necessary  for  the  proper  conduct  of  Parish 
and  Vestry  meetings,  with  a  concise  statement  of  their  object, 
effect,  and  order  of  precedence. 

If  no  regular  order  of  business  has  been  adopted  for  the  conduct 
of  Vestry  meetings,  the  following  would  be  a  proper  order  therefor  : 

i.  Reading  of  the  Minutes  of  the  previous  meeting,  and  ap- 
proval of  the  same. 

2.  Report  of  the  Treasurer. 

3.  Reports  of  Standing  Committees. 

4.  Reports  of  Special  Committees. 

5 .  Unfinished  Business . 

6.  New  Business. 

If,  for  any  reason,  it  should  be  desired  to  transact  business  out  of 
the  regular  order,  a  motion  should  first  be  made  to  suspend  the 
rules  or  order  of  business,  which  can  only  be  done  by  a  two-thirds 
vote. 

While  all  business  should  be  brought  before  the  meeting  on  the 
motion  of  a  member  thereof,  no  motion  is  necessary  to  receive  the 
report  of  a  committee,  unless  objection  is  made  to  its  reception. 

Before  a  subject  is  properly  open  to  debate,  a  motion  should  be 
made  and  seconded,  and  then  stated  by  the  Chairman. 

The  member  who  offers  the  motion  may  modify  or  withdraw  his 
motion  before  it  has  been  stated  by  the  Chair,  but  after  it  has  been 
so  stated  he  cannot  withdraw  it,  except  by  unanimous  consent,  or 
on  a  motion  for  that  purpose ;  nor  can  he  then  modify  it  except  by 
moving  an  amendment. 

After  a  motion  has  been  stated  by  the  Chairman  it  is  in  the  pos- 
session of  the  meeting,  and  may  be  disposed  of,  besides  being 
directly  adopted  or  rejected,  as  follows,  and  in  this  order  of  pre- 
cedence : 


3I4  LA  W  OF  THE  CHURCH. 

i.  By  Objection  made  to  its  Consideration. 

2.  By  Leave  granted  to  Withdraw  the  Motion. 

3.  By  Being  Laid  on  the  Table. 

4.  By  Postponement  to  a  Certain  Hour  or  Day. 

5.  By  being  Committed  or  Referred. 

6.  By  Amendment. 

7.  By  being  Postponed  Indefinitely. 

(1)  Objection  to  the  consideration  of  a  motion  must  be  made 
immediately  after  the  motion  has  been  stated  by  the  Chairman, 
and  before  any  debate  thereon  has  been  had. 

It  does  not  require  to  be  seconded  and  cannot  be  debated  or 
amended.  If  sustained  by  a  two-thirds  vote,  the  original  motion  is 
disposed  of  and  can  receive  no  further  consideration  by  the  meet- 
ing. The  object  of  such  objection  is  to  prevent  any  consideration 
of  a  question,  when  such  consideration  is  deemed  inadvisable. 

(2)  Should  the  mover  of  a  motion  desire  to  Withdraw  or  Amend 
his  motion,  or  offer  a  substitute  therefor,  he  may  do  so  by  unani- 
mous consent,  or,  if  that  be  not  granted,  by  a  motion  made  for 
that  purpose,  which  must  also  be  put  without  debate  or  amend- 
ment. 

If  the  motion  to  Withdraw  receive  a  majority  vote,  it  effects  a 
complete  withdrawal  of  the  original  motion  from  the  consideration 
of  the  meeting. 

(3)  A  motion  to  Lay  on  the  Table  is  not  debatable,  nor  subject 
to  amendment  in  any  way,  but  when  made  and  seconded  must  be 
immediately  put  by  the  Chairman,  unless  a  motion  of  a  higher 
order  be  made,  while  this  motion  is  pending. 

If  this  motion  be  carried,  the  question  must  lie  on  the  table 
until  a  motion  be  made  and  adopted  by  a  majority  vote  to  take 
it  from  the  table. 

A  motion  to  Lay  on  the  Table  is  always  in  order,  so  long  as  the 
question  is  before  the  meeting.  The  object  of  this  motion  is  usu- 
ally for  the  purpose  of  defeating  the  question  under  consideration, 
although  it  may  also  be  made  for  the  purpose  of  postponing  the 
consideration  of  the  question  to  some  more  opportune  time,  and  is 
so  far  preferable  to  a  motion  to  postpone  for  a  definite  or  indefinite 
time,  in  that  it  allows  the  question  to  be  considered  at  any  time 
during  either  that  meeting  or  a  subsequent  meeting,  whenever  a 


RULES  OF  ORDER.  315 

majority  may  vote  to  take  it  from  the  table.  The  effect  of  the 
motion  is  to  prevent  any  further  consideration  of  the  whole  question 
until  duly  taken  from  the  table. 

(4)  A  motion  to  Postpone  to  a  Certain  Time  may  be  made  at 
any  time  while  the  question  is  under  consideration,  except  that  it 
cannot  be  made  while  any  motion  or  question  of  a  higher  order  is 
being  considered ;  but  any  one  of  these  motions  may  be  made 
during  the  consideration  of  a  motion  to  Postpone. 

The  motion  to  Postpone  to  a  Certain  Time  may  be  amended  by 
altering  the  time  to  which  it  is  proposed  to  postpone  the  question, 
which  time  must  not  be  beyond  the  next  regular  or  adjourned 
meeting  of  the  Vestry.  Only  a  limited  debate  is  allowed  on  this 
motion,  and  must  be  confined  to  the  motion  itself.  The  merits  of 
the  main  question  cannot  be  debated  under  this  motion.  The  ob- 
ject and  effect  of  this  motion  is  to  defer  action  on  the  question 
until  the  time  specified  therein,  and  the  question  cannot  be  con- 
sidered before  the  time  so  specified  except  by  a  two-thirds  vote. 

(5)  The  next  motion,  in  order  of  precedence,  that  may  be  made  is 
a  motion  to  Refer  or  to  Commit,  or,  if  the  question  has  before 
been  committed,  to  Recommit.  This  motion  is  subject  to  amend- 
ment, and  the  whole  question  which  it  is  proposed  to  refer,  com- 
mit, or  recommit  to  a  committee  may  be  debated.  The  object  of 
this  motion  is  to  secure  at  the  hands  of  a  select  committee  a  more 
careful  consideration  of  the  question  than  is  possible  to  be  given  to 
it  by  the  meeting.  Its  effect  is  to  remove  the  consideration  of  the 
question  from  the  meeting  until  such  time  as  the  committee  to 
whom  it  was  committed  or  referred  report  back  to  the  meeting. 

(6)  The  Main  Question  before  the  meeting,  as  well  as  motions 
to  Postpone  to  a  Certain  Time,  to  Commit  or  Refer,  and  to  Fix 
the  Time  to  which  to  Adjourn,  may  be  amended,  and  a  motion 
to  Amend  is  debatable. 

An  Amendment  may  also  be  amended,  but  an  "  amendment  of 
an  amendment "  cannot  be  amended.  A  Substitute  for  the  origi- 
nal motion  may  be  made,  even  after  a  motion  to  amend  an  amend- 
ment has  been  offered,  and  takes  precedence  over  the  original  mo- 
tion and  the  motions  to  amend. 

The  question  first  occurs  on  the  motion  to  Substitute.  If  this 
motion  be  carried,  the  substitute  takes  the  place  of  the  original 


3i6  LA  W  OF  THE  CHURCH. 

motion,  and  the  amendments  before  made  or  offered  to  it.  If  the 
motion  to  substitute  be  not  carried,  the  question  then  occurs  on 
the  amendment  to  the  amendment.  If  the  amendment  to  the 
amendment  be  lost,  the  question  next  occurs  on  the  first  amend- 
ment, or  if  the  amendment  to  the  amendment  be  carried,  on  the 
amendment  so  amended. 

After  the  substitute  and  the  amendments  have  been  disposed  of. 
the  consideration  of  the  main  question  is  in  order.  If  the  amend- 
ment to  the  main  question  be  carried,  the  question  must  be  put  by 
the  Chairman,  as  so  amended. 

Motions  to  Amend  should  always  be  put  and  considered  in  the 
reverse  order  in  which  they  are  offered,  i.e.,  the  motion  last  made 
(relating  to  the  subject  matter)  must  be  the  first  to  be  considered 
and  disposed  of. 

(7)  A  motion  to  Postpone  Indefinitely  is  debatable,  but  cannot 
be  amended.  Its  object,  usually,  is  to  suppress  the  question  before 
the  meeting  and  prevent  a  vote  being  taken  thereon. 

Its  effect  is  to  prevent  any  further  consideration  of  the  question 
at  that  meeting,  unless  a  motion  to  reconsider  the  vote  of  indefinite 
postponement  be  made  and  carried. 

A  motion  to  Reconsider  a  vote  already  taken  is  always  in  order, 
although  it  cannot  be  considered  while  any  other  question  is  being 
considered ;  but  the  mover  of  the  motion  to  Reconsider — which 
must  always  be  made,  except  when  the  vote  was  by  ballot,  by  one 
who  voted  against  the  motion — may  have  such  motion  entered  on 
the  minutes,  and  can  then  call  it  up  for  consideration  at  any  time 
during  the  meeting  when  there  is  no  question  before  the  meeting. 

While  there  are  several  Incidental  and  Privileged  Questions,  that 
sometimes  arise  in  large  assemblies,  the  following  five  Questions, 
arranged  in  their  order  of  precedence,  are  the  only  ones  that  will 
often  arise  in  either  Parish  or  Vestry  meetings : 

1.  To  Fix  the  Time  to  which  the  Meeting  shall  Adjourn. 

2.  To  Adjourn. 

3.  To  Appeal. 

4.  To  Suspend  the  Rules. 

5.  The  Previous  Question. 

(1)  A  motion  to  Fix   the  Time  to  which  to  Adjourn  can  be 


RULES  OF  ORDER.  317 

amended,  but  is  not  subject  to  debate,  unless  no  other  question 
is  under  consideration  at  the  time  when  such  motion  is  offered. 
It  takes  precedence  over  all  other  motions,  and  may  be  made  at 
any  time  before  the  Chairman  has  announced  the  vote  on  a  motion 
to  Adjourn, 

(2)  A  motion  to  Adjourn,  when  unqualified,  is  always  in  order 
except  when  a  member  has  the  floor,  or  while  a  vote  is  being  taken. 
If  a  motion  to  Adjourn  be  voted  down,  it  can  be  renewed  at  any 
time,  provided  any  business  or  debate  intervene  between  the  mak- 
ing of  such  motions.  A  motion  to  Adjourn,  when  unqualified,  can- 
not be  debated,  nor  can  it  be  amended  in  any  way,  and  takes  pre- 
cedence over  all  other  motions,  except  a  motion  to  Fix  the  Time  to 
which  the  meeting  shall  Adjourn.  If  a  motion  to  Adjourn  be  made 
while  any  question  is  under  consideration,  its  effect  is  to  place 
such  question  in  the  list  of  Unfinished  Business  for  the  next  meet- 
ing of  the  Vestry. 

(3)  Any  member  has  a  right  to  Appeal  from  the  decision  of  the 
Chair,  but  such  Appeal  must  be  made  at  the  time  of  the  decision. 
An  Appeal  takes  precedence  over  all  other  motions  and  questions 
named,  except  a  motion  to  Fix  the  Time  to  which  to  Adjourn,  and  a 
motion  to  Adjourn.  Being  a  Question  of  Order,  it  cannot  be 
amended,  and  is  not  usually  subject  to  debate. 

(4)  A  motion  to  Suspend  the  "  Rules  of  Order  "  may  be  made 
only  once  for  the  same  purpose  during  a  meeting.  This  motion  is 
not  subject  to  debate,  and  cannot  be  amended  in  any  way,  and 
must  be  carried  by  a  two-thirds  vote  in  order  to  effect  a  suspen- 
sion of  the  rules. 

(5)  The  Previous  Question  is  not  debatable  nor  subject  to  amend- 
ment of  any  kind,  and  requires  a  two-thirds  vote  for  its  adoption.  It 
takes  precedence  over  all  debatable  questions,  except  a  motion  to 
Fix  the  Time  to  which  to  Adjourn.  The  vote  by  which  it  was 
adopted  or  rejected  may  be  reconsidered.  The  object  of  the  Pre- 
vious Question  and  its  effect,  if  adopted,  is  to  prevent  further  debate, 
and  bring  the  pending  question  to  an  immediate  vote. 

The  following  "  Order  of  Precedence  cf  Motions  "  is  taken  from 
"  Roberts'  Rules  of  Order,"  to  which  the  author  is  greatly  indebted, 
in  his  treatment  of  the  subject,  and  to  which  reference  should  be 
had,  for  a  clear  and  complete  discussion  of  all  questions  relating  to 


3i 8  LA  W  OF  THE  CHURCH. 

"Rules  of  Order."  The  author  has  taken  the  liberty  of  omitting 
"  For  the  Orders  of  the  Day  "  from  the  following  table,  as  such 
"  Orders  "  are  intended  for  meetings  of  other  character  than  Parish 
or  Vestry  meetings,  and,  therefore,  for  the  purposes  of  this  work, 
require  no  consideration. 

"  ORDER   OF   PRECEDENCE  OF   MOTIONS." 
"  The  ordinary  motions  rank  as  follows,  and  any  of  them  (ex- 
cept to  amend)  can  be  made  while  one  of  a  lower  order  is  pending, 
but   none  can    supersede  one  of  a    higher  order ;  the   Previous 
Question  requires  a  two-thirds  vote,  the  others  only  a  majority. 

UNDEBATABLE. 

To  Fix  the  Time  to    Which  to  Adjourn. 
To  Adjourn  (when  unqualified).  1   Cannot  be 

To  Lay  on  the  Table.  \  Amended 

The  Previous  Question  (two-thirds  vote). 

DEBATABLE. 

To  Postpone  to  a  Certain   Time.   | 
To  Commit  or  Refer.  \    Can  be  Amended. 

To  Amend. 

To  Postpone  Indefinitely." 
To  the  above  motions  should  be  added  the  following  questions, 
which  take  precedence  in  the  order  named,  and  which  are  of  prior 
rank  to  all  the  motions  above  named,  excepting  the  two  motions 
first  stated,  viz.,  a  motion  To  Fix  the  Time  to  Which  to  Ad- 
journ, and  a  motion  To  Adjourn  : 

To  Appeal.  ~\ 

Objection  to  the  Consideration  of  the  Question.       I   Cannot  be 
Leave  to  Withdraw  the  Motion.  f  Amended. 

To  Suspend  the  Rules. 

"  The  motion  to  Reconsider  can  be  made  when  any  other  ques- 
tion is  before  the  assembly,  but  cannot  be  acted  upon  until  the 
business  then  before  the  assembly  is  disposed  of,  when,  if  called 
up,  it  takes  precedence  of  all  other  motions,  except  to  adjourn, 
and  to  fix  the  time  to  which  to  adjourn." — (Roberts'  Rules  of  Order, 
p.  10.) 


APPENDICES 
TOitb  forms. 


AS  the  Statute  Laws  and  the  mode  of  procedure  in  the  Courts 
of  the  several  States  are  so  variant,  it  is  deemed  unwise 
to  attempt  to  set  forth  any  forms  of  a  purely  legal  nature. 
Statutory  requirements  must,  in  all  cases,  be  strictly  complied 
with,  and  the  services  of  one  learned  in  the  law  should  always  be 
secured  in  the  preparation  of  legal  forms  and  instruments.  Neg- 
lect to  do  so  is  one  of  the  most  fruitful  sources  of  legal  complica- 
tions. 

The  Canons  of  the  various  Dioceses  also  differ  so  widely  as  to 
make  it  impossible  to  set  forth  any  prescribed  series  of  Canonical 
forms  that  will  in  every  case  fulfil  the  requirements  of  the  variant 
Canons.  In  the  following  appendices  the  author  has  endeavored 
to  set  forth  certain  forms  conlaining  the  maximum  of  requirements 
in  each  case.  It  will  be  necessary  in  many  Dioceses  to  vary  these 
several  forms,  in  order  to  make  them  conform  to  the  requirements 
of  the  Canon  or  Statute  Law,  or  both,  as  the  case  may  be,  and 
which  must  be  fully  complied  with. 


APPENDIX  A. 

FORMS    FOR     THE      INCORPORATION     OF     CHURCHES. 

FORM   OF   NOTICE   OF   MEETING    TO    INCORPORATE  A   CHURCH. 

NOTICE  is  hereby  given  that  a  meeting  of  the  male  persons 
(or  the  persons)  of  full  age,  belonging  to  this  Church  will  be 
held  on  the day  of ,  19 — ,  at  —  o'clock  in  the 

,  in  this  place  (the  usual  place  of  worship),  for  the  purpose  of 

incorporating  themselves  under  the  Acts  of  the  Legislature  in  such 
case  made  and  provided  ;  todetermine  the  corporate  name  or  title  by 

which  such  Church  shall  be  known  in  law ;  on  what  day  in week 

an  annual  election  of  Wardens  (or  Church  Wardens)  and  Vestry- 
men shall  thereafter  take  place  ;  what  number  of  Vestrymen,  not 

less  than nor  more  than ,  shall  annually  be  elected 

to  constitute,  together  with  the  Rector  (if  there  be  one),  and  the 
two  Wardens  (or  Church  Wardens),  the  Vestry  of  said  Church  ; 
and,  by  a  majority  of  votes,  to  elect  two  Wardens  (or  Church 
Wardens),  and  the  number  of  Vestrymen  determined  to  be 
elected,  to  serve  until  the  next  annual  election. 

Dated,  etc. 

[This  notice  should  be  signed  by  the  Minister  in  charge,  if  there 
be  one,  or  by  the  Wardens,  or,  if  there  be  no  Wardens,  by  any 
member  or  members  of  the  congregation,  and  conspicuously  posted 
on  the  outer  door  of  the  church,  or  usual  place  of  worship,  unless 
the  law  provides  that  it  shall  be  posted  elsewhere. 

In  some  States  the  Statute  requires  that  the  notice  shall  be  read 
during  the  time  of  Divine  Service,  and  in  others  that  it  shall  both 
be  so  read  and  so  posted  as  before  noted. 

In  some  States,  Articles  of  Association  or  Agreement,  or  a  Con- 
stitution, must  be  adopted  at  such  meeting.  In  such  States  the 
notice  should  state  accordingly.  Care  should  be  taken  that  the 
notice  gives  intention  of  proposed  action  on  every  requirement  of 
the  Statute  or  Canon,  or  both. 

In  New  York  State  the  last  two  clauses  of  the  form  above  given 
should  be  altered  to  read  as  follows :] 


322  LA  W  OF  THE  CHURCH. 

What  number  of  Vestrymen,  not  less  than  three  nor  more  than 
nine,  shall  be  elected  to  constitute,  together  with  the  Rector  {if 
there  be  one),  and  the  two  Church  Wardens,  the  Vestry  of  the 
Church  ;  and,  by  a  majority  of  votes,  to  elect  one  Church  Warden 
to  hold  office  until  the  next  annual  election,  and  one  Church  War- 
den to  hold  office  until  one  year  after  such  annual  election,  and 
one-third  of  the  number  of  Vestrymen,  so  determined,  to  hold  office 
until  the  first  annual  election,  one-third  of  such  number  to  hold 
office  until  one  year  after  such  annual  election,  and  one-third  of 
such  number  to  hold  office  until  two  years  after  such  annual  elec- 
tion. 

[In  the  State  of  New  Jersey  the  following  notice  is  a  sufficient 
compliance  with  the  statutory  requirements:] 

Notice  is  hereby  given  to  the  congregation  of Church,  in 

,  that  a  meeting  of  the  duly  qualified  voters  cf  said  Church 

will  be  held  in  ,  on  ,  the  day  of  ,  at 

o'clock  in  the noon,  for  the  purpose  of  taking  such 

measures  as  may  be  necessary  to  incorporate  the  said  congregation 
in  accordance  with  the  provisions  of  chapter  sixty-two  of  the  laws 
of  nineteen  hundred  and  one  of  the  State  of  New  Jersey,  approved 
March  20,  1901,  and  entitled  "A  Supplement  to  an  Act,  entitled 
lAn  Act  to  Incorporate  Trustees  of  Religious  Societies '  (Revision), 
Approved  April  9,  1875,  etc." 

Dated,  etc. 

[To  be  signed  by  the  Minister  and  five  male  members  of  full  age.] 

[In  some  Dioceses  "  Articles  of  Association "  must  first  be 
adopted  and  signed  by  the  persons  of  legal  age,  so  adopting  them, 
and  officers  be  elected.  These  requirements  having  been  com- 
plied with,  a  petition  may  then  be  presented  to  the  proper  Court, 
praying  for  a  decree  whereby  the  Church  may  become  incorpor- 
ated.] 


APPENDIX  B. 


FORMS  OF  NOTICE  OF  ANNUAL  ELECTION. 

N'  OTICE  is  hereby  given  that  an  election  for  two  Wardens  (or 
Church  Wardens)  and  —  Vestrymen,  will  be  held  in  this 
church  (or  parish  house,  or  such  other  suitable  place  as 

may  be  determined  upon)  on  the day  of ,  19, — ,  at  — 

o'clock  in  the noon  (or  evening). 

(If  the  law  requires  the  polls  to  remain  open  a  certain  specified 
time,  these  words  should  be  added  to  the  notice:  The  polls  to  re- 
main open hour  [or  hours],  or  longer  if  necessary.) 

[In  New  York  State,  in  such  Parishes  as  have  become  incorpor- 
ated under  the  Religious  Corporation  Act  of  1909,  being  Chapter 
LI.  of  the  General  Laws  of  that  State,  or  in  such  Parishes  be- 
fore incorporated  as  may  have  duly  adopted  the  provisions  of  the 
said  Act,  the  notice  of  the  annual  election  may  read  substan- 
tially as  follows :] 

Notice  is  hereby  given,  that  an  election  for  one  Church  War- 
den, to  succeed ,   elected  for  two  years,  whose  term  ot 

office   will   then   expire,  and    for Vestrymen  to   succeed 

(naming   the   Vestryman),  elected  for  three 

years,  whose  terms  (or  term)  of  office  will  then  expire,  will  be  held 

in  this  church  (or  place  of  worship,  or  parish  house),  on , 

the  —  day  of 19 — ,  immediately  after  morning  service, 

which  will  be  held  at  — o'clock  A.M.,  the  polls  to  remain  open  one 
hour,  or  longer  if  required. 

[Should  any  other  business  than  the  election  of  Wardens  and 
Vestrymen  be  purposed  at  such  meeting,  it  should  be  specified  in 
the  notice.  If  an  election  also  be  had  to  fill  a  vacancy,  or  for  a 
successor  to  a  Church  Warden  or  Vestryman  chosen  by  the  Vestry 
to  fill  a  vacancy,  such  fact  should  be  stated  in  the  notice.] 


APPENDIX  C. 

FORMS  RELATING  TO  ELECTION  OF  WARDENS  AND 

VESTRYMEN. 

FORM  OF  CERTIFICATE  OF  ELECTION   OF   WARDENS   AND 
VESTRYMEN. 


T 


HIS  is  to  certify  that  at  the  stated  annual  election  of  War- 
dens (or  Church  Wardens)  and  Vestrymen,  for Church, 

,  held,  in  pursuance  to  notice  duly  given,  at 

church  (or,  at  the  usual  place  of  worship  of  said  Church),  on  the 
day  of 19 — ,  at —  o'clock  a.m.  (or  p.m.),  the  fol- 
lowing persons  were  duly  elected  by  a  majority  of  the  votes  cast  by 

the  persons  present  and  qualified  so  to  vote  :  ,  and , 

as  Wardens  (or  Church  Wardens,  or as  Senior  Warden, 

and ,  as  Junior  Warden),  and —  (naming  the  per- 
sons), as  Vestrymen  for  the  ensuing  year. 

[In  those  States  or  Dioceses  where  the  law  requires  that  the  cer- 
tificate of  the  election  of  Wardens  and  Vestrymen  shall  be  filed 
for  record  with  some  designated  civil  officer,  it  should  be  duly  ac- 
knowledged.] 

FORM  OF  ENTRY  OF  ELECTION  IN  BOOK  OF  MINUTES. 

Church, ,  the  day  of ,  19 — . 


At  a  meeting  of  the  qualified  electors  of  said  Church,  of  which 

notice  was  duly  given  according  to  law,  held  at  the ,  on 

,  the ■  day  of ,  19 — ,  at a.m.  (or  p.m.), 

to  elect  Wardens  (or  Churchwardens),  and  Vestrymen,  I,  the  Rev. 

,   Rector  (or ,  one   of  the  Wardens,    or   Church 

Wardens)  of  said  Church,  presided  at  such  meeting,  and  (unless  the 
law  provides  otherwise)  received  the  votes  of  the  said  electors. 
I  do  also  affirm  that  the  polls  were  kept  open  for  one  hour  (if  the 
law  so  requires) ;  that  the  following  named  persons,  having  each 
received  a  majority  of  the  whole  number  of  votes  cast,  were  de- 
clared elected  Wardens  and  Vestrymen  of  said  Church   for  the 

ensuing  year:  and Wardens  (or  Church  Wardens,  or 

Senior    Warden,  and Junior  Warden),   and  

{naming  the  persons).  Vestrymen. 


APPENDICES.  325 

[This  should  be  signed  by  the  Presiding  Officer  and  the  Secretary 
of  the  meeting  or  by  such  other  persons  as  the  law  may  direct.  If 
the  election  be  to  fill  a  vacancy,  the  same  form,  with  obvious 
changes,  may  be  used.  If  any  other  business  than  the  election  of 
Wardens  and  Vestrymen  be  transacted  at  such  meeting  it  should 
also  be  recorded  in  the  "  Book  of  Minutes."  In  New  York  State 
in  such  Parishes  as  may  hold  their  elections  under  the  provisions 
of  the  Religious  Corporations  Law  of  1909,  the  terms  for  which  the 
Churchwarden  and  Vestrymen  were  elected,  and  the  names  of  the 
Church  Warden  and  Vestrymen  whom  they  succeed,  should  also 
be  entered  in  the  "  Book  of  Minutes,"  and  the  above  form  varied 
accordingly.] 


APPENDIX  D. 

FORM  OF  CERTIFICATE  OF  LAY  DEPUTIES  TO  DIO- 
CESAN CONVENTIONS. 

{Name  of  Church  and  Placed) 
{Date.) 

THIS  is  to  certify  that  at  a  regular  meeting  of   the   Vestry  of 
this  Church  {or  at  the  annual   meeting   of  the  Parish  for 
the  election  of  Church  officers  and  Deputies  to  the  Conven- 
tion), held  according  to  law  on  the  day  of  ,  19 — , 

in {naming  the  place), {giving  the  names  of  the 

Persons  ififull),  were  duly  elected  Lay  Deputies  {or  Delegates)  for 
the  ensuing  year,  to  the  Convention  {or  Council)  of  the  Church  in 
the  Diocese  of ,  and  that  each  of  said  Deputies  {or  Dele- 
gates) so  elected,  is  a  communicant  of  the  Church  in  this  Parish. 
{[/other  qualifications  are  required  by  the  Canons,  state  that  each 
is  so  qualified. ) 

[This  certificate  must  be  signed  by  the  Rector  and  such  other  officer 
as  the  Canons  may  direct.  If  there  be  no  Rector,  it  should  be  so 
stated  in  the  certificate,  and  the  certificate  signed  by  the  Warden 
who  presided  at  such  meeting,  or  by  both  Wardens,  according  as 
the  Canons  may  require. 

In  most  of  the  Dioceses,  the  form  of  the  certificate  is  prescribed 
by  the  Canons  or  by  the  Convention  or  Council  of  the  Diocese,  and 
where  so  prescribed  should  be  strictly  followed.  The  above  form 
is  given  simply  as  a  guide  to  Parishes,  in  those  Dioceses  where  no 
particular  form  is  prescribed  by  the  Canons  or  the  Convention. 
Where  alternates  ate  chosen,  their  names  may  be  included  in  one 
certificate,  the  language  being  varied  accordingly.] 


APPENDIX  E. 

FORMS  RELATING  TO  THE  TRANSFER  OF  REAL  CHURCH 
PROPERTY. 

FORM   OF   PETITION   TO    THE    BISHOP    AND    STANDING    COMMIT- 
TEE  OF   THE   DIOCESE    FOR   PERMISSION   TO    ALIENATE 
REAL   CHURCH    PROPERTY. 

To  the  Bishop  and  Standing  Committee  of  the  Diocese  of : 

THE  petition  of  the  Rector,  Wardens  {or  Church  Wardens) 
and  Vestrymen  of  Church   in  ,  respectfully 

showeth  : 

That  they  are  seized  in  fee  of  certain  premises,  consisting  of  one 

tract  of  land,  situated   in  said ,  bounded   and   described  as 

follows  :  {Here  describe  the  premises  in  full.  If  any  buildings 
are  situated  on  such  premises,  so  state.)  That  the  said  Corpora- 
tion have  incurred  a  debt  of  dollars  by  reason  of 

{stating  the  reason,  or  that  they  desire  to  erect  a  church  or  parish 
house  or  rectory,  as  the  case  may  be,  stating  concisely  the  reason 
for  desiring  to  alienate  the  property  described,  and  that  the  ?noney 
to  be  derived  from  the  sale  or  mortgage  of  such  property  is  neces- 
sary for  the  purpose  stated).  That  said  premises  are  valued  in  the 
sum  of dollars. 

That  at  a  meeting  of  the  Vestry  of  said  Church,  duly  called, 

and  held  on  the day  of ,  19—,  at  which  meeting  were 

present  the    Rector,  two  Wardens   {or  Church   Wardens)   and 

Vestrymen,  being  a  majority   of   the   same,  the   following 

resolution  was  adopted  by  a  majority  vote  {or  unanimous  vote)  of 
those  present  at  said  meeting,  to  wit  :     {Insert  the  resolution?) 

That  a  meeting  of  the  qualified  voters  of  said  Church  was  held 
in  the  church  {or  usual   place  of   worship)    of    said  corporation, 

on  ,  the  day  of ,  19  —  ,  pursuant  to  a  notice 

duly  given,  which  notice  contained  the  aforesaid  resolution,  and 


328  LA  W  OF  THE  CHURCH. 

stated  that  said  resolution  would  be  then  and  there  submitted  to 
the  qualified  voters  of  said  Church  for  their  approval  or  rejection  ; 
and  that  at  said  meeting  a  vote  was  taken  for  that  purpose,  and  said 
resolution  was  adopted  by  an  unanimous  vote  {or  by  the  vote  of  a 
majority  of  the  qualified  voters  present  thereat). 

Your  petitioners  therefore  pray  that  the  consent  of  the  Bishop 
and  Standing  Committee  may  be  given  to  the  sale  {or  mortgage, 
or  otherwise  as  may  be  desired}  of  the  said  premises  herein  de- 
scribed. 

The  Rector,  Wardens  {or  Church  Wardens),  and  Ves- 
trymen of Church  in . 

Per ,  Rector. 

Dated,  etc. 


APPENDIX  F. 

FORMS  FOR  ORGANIZING  MISSIONS  AND  PARISHES. 

FORM   OF  APPLICATION   TO  THE   BISHOP   FOR  HIS  CONSENT 
TO   ESTABLISH    A   MISSION. 

IN  many  of  the  Dioceses  the  Canons  prescribe  the  form  of  the 
application  to  be  sent  to  the  Bishop,  asking  his  consent  to  the 
establishment  of  a  Mission.  In  those  Dioceses  where  no  form 
is  so  prescribed,  the  application  may  be  made  substantially  as 
follows : 
To  the  Right  Reverend ,  Pishop  of  the  Diocese  of .• 

We,  the  undersigned,  residents  of  (or  in  or  near)  the of 

,  County  of  ,  in  this  Diocese,  being  desirous  of  ob- 
taining the  ministrations  of  the  Protestant  Episcopal  Church  for 
ourselves  and  for  our  families,  do  hereby  request  the  Bishop  that 
he  will  provide  the  same  for  us,  in  such  wise  as  he  may  deem  ex- 
pedient (or  do  hereby  unite  in  the  organization  of  a  "  Mission  " 
of  said  Church). 

And  for  these  benefits,  we  do  hereby  place  ourselves  under  the 
jurisdiction  of  the  Bishop  (or  Ecclesiastical  Authority)  of  this  Dio- 
cese, and  do  recognize  and  promise  obedience  and  conformity  to 
the  Constitutions  and  Canons  of  the  General  Convention,  and  of 
the  Church  in  this  Diocese ;  and  we  desire  to  be  organized  as  a 
"  Mission"  (or  we  ask  to  be  received  as  an  "  Organized  Mission  "), 

in  accordance  therewith,   under  the   name  of  " Mission, 

in  ." 

And  furthermore,  we  do  hereby  agree  to  pay  monthly  (or  for 
this  year),  from  this  Mission  and  for  its  support,  to  the  Treasurer 
of  the  Board  of  Missions  (or  to  the  Treasurer  of  the  Mission),  the 

sum  of  $ .until  ,  19 — ,  and  thereafter  a  sum  to  be 

stated  to  the  Bishop  at  each  Convention  of  the  Diocese. 

[This  application,  or  a  like  application,  must  be  signed  by  those 
who  desire  the  services  of  the  Church,  and  purpose  to  be  members 
of  the  Mission.] 


330  LA  W  OF  THE  CHURCH. 

FORM   OF   APPLICATION   TO  THE   BISHOP   FOR   HIS  CONSENT  TO 
ORGANIZE   A    NEW   PARISH. 

To  the  Right  Reverend ,  Bishop  of : 


We,  whose  names  are  here  underwritten,  respectfully  show  that 
we  are  each   (stating  every  requirement  of  the  Canon   in  such 

case    made  and  provided),  that   we    are    residents  of   — , 

County  of ,  in  this  Diocese,  and  being  deeply  sensible  of  the 

Truth  of  the  Christian  Religion,  and  conscientiously  attached  to 
the  Doctrine,  Discipline  and  Worship  of  the  Protestant  Episcopal 
Church  in  the  United  States,  and  being  earnestly  desirous  of  estab- 
lishing its  authority,  and  securing  its  holy  influences,  for  ourselves, 
our  families,  and  neighbors,  and  those  to  come  after  us,  do  here- 
by respectfully  ask  the  permission  of  the  Bishop  of  the  Diocese  to 
associate  and  organize  ourselves  and  others,  as  a  Parish  of  the 

said  Church,  in  the  Diocese  of  ,  under  the  name  and  title  of 

,  in  said  place  herein  designated ;  and  we  hereby  solemnly 

promise  and  declare  that  the  said  Parish  shall  be  forever  held  and 
incorporated  under  the  Ecclesiastical  Authority  of  the  Bishop  of 

,  and  of  his  successors  in  office,  and  in  conformity  with  the 

Constitution  and  Canons  of  the  Protestant  Episcopal  Church  in  the 
United  States  of  America,  and  the  Constitution  and  Canons  of  the 

Diocese  of ,  the  authority  of  which  we  do  hereby  recognize, 

and  to  whose  Liturgy,  Doctrine,  Discipline,  Rites  and  Usages,  we 
promise  at  all  times,  for  ourselves  and  our  successors,  corporate 
obedience  and  conformity.  Furthermore,  we  solemnly  engage  and 
stipulate  that  all  real  estate  of  which  the  said  Parish  may  become 
possessed  shall  be  secured  forever  against  alienation  from  the 
Church,  now  known  as  the  "  Protestant  Episcopal  Church  in  the 
United  States  of  America,"  unless  with  the  consent  of  the  Bishop 
and  Standing  Committee  of  this  Diocese,  or,  in  case  of  a  division  of 
this  Diocese,  of  that  Diocese  within  whose  jurisdiction  we  may 
come.     We,  your  petitioners,  would  further  state  that  our  place  of 

worship  (or  intended  place  of  worship)  is  distant from 

church  in  , from  church  in ,  

from church  in  ;  and  we  do  hereby    promise  and 

stipulate  that  we  will  not  erect   any  church  edifice   or  place»of 


APPENDICES.  33  x 

worship  within  a  distance  of  from   any  existing  church. 

chapel,  or  place  of  worship  of  any  congregation  in  communion  with 
the  said  Protestant  Episcopal  Church.  We  do  also  promise  and 
engage  that  the  said  Parish  will  apply  so  soon  as  possible  after  its 
incorporation,  for  admission  into  union  with  the  Convention  of  the 

Diocese  of ,  and  will  become  subject  to  the  Constitution  and 

Canons  thereof. 

Dated  day  of  ,  19 — . 

[If  any  other  facts  are  required  by  the  Canons  of  the  Diocese, 
they  should  also  be  stated  therein.  This  petition  must  be  signed 
by  the  full  number  of  persons  determined  by  the  Canons  of  the 
Diocese,  and  possessing  the  qualifications  therein  required. 

Owing  to  the  varying  requirements  of  the  Canons  of  the  several 
Dioceses  in  the  matter  of  the  petition  to  the  Bishop  for  consent  to 
establish  a  new  Parish,  it  is  impossible  to  set  forth  a  form  that  will 
fulfil  the  requirements  in  every  Diocese.  The  above  form  is  given 
as  a  model,  which  may  be  varied  more  or  less  materially,  to  com- 
ply with  the  varying  requirements  in  those  Dioceses  where  the  pre- 
cise form  of  the  petition  is  not  prescribed  by  the  Canons  or  by 
the  Convention.] 

FORM   OF    CONSENT. 

The   petition   of  certain  persons  desiring  the   formation   of  a 

new  Parish  in  the of  ,  County   of  ,  to  be 

known  as Church,  having  been  duly  considered  {insert  the 

words,  by  the  Standing  Committee  and  by  them  approved,  if  the 
Canons  require  such  consent),  I  do  hereby  give  my  canonical  con- 
sent to  the  formation  of  said  Parish,  in  agreement  with  the  prom- 
ises, engagements,  and  stipulations  contained  in  the  said  petition. 

Given  under  my  hand  this day  of ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and . 

,  Bishop  of  . 


Attest  : ,  Secretary  of  the  Standing  Committee. 

FORM  OF  NOTICE  OF  ORGANIZATION. 

Notice  is  hereby  given  that  we,  whose  names  are  here  under- 
written, and  who  signed  the  application  made  to  the  Bishop  for 


332  LA  W  OF  THE  CHURCH. 

his  consent  to  the  formation  of  a  Parish  in ,  to  be  known 

as  the  Rector,  Wardens  (or  Church  Wardens)  and  Vestrymen  of 

Church,  in , ,  will  assemble  at ,  for  the 

purpose  of  organizing  said   Parish  of  the   Protestant  Episcopal 

Church  in -,  County  of ,  and  State  of  ,  in  the 

Diocese  of ,  on    ,  the day  of ,  A.D.  19 — , 

at  the  hour  of o'clock  in  the . 

Dated . 


[This  notice  should  be  signed  by  the  same  persons,  and  by  all  of 
them,  who  signed  the  application  to  the  Bishop.  The  meeting 
assembled  in  pursuance  of  such  notice  duly  given  should  adopt 
Articles  of  Association  or  Agreement,  or  a  Constitution,  as  the 
Canons  may  require.  The  requirements  of  the  Canons  of  the  sev- 
eral Dioceses  regarding  such  Articles  or  Constitution  are  so  vari- 
ant as  to  render  it  impossible  to  set  forth  any  prescribed  form 
for  general  use.  In  many  of  the  Dioceses  a  form  is  set  forth  by 
the  Convention,  and  in  most  of  those  Dioceses  where  no  form  is 
so  set  forth,  the  necessary  requirements  are  prescribed  in  the  Con- 
stitution and  Canons  of  the  Diocese,  and,  in  some  cases,  by  the 
Statute  Law  of  the  State.  In  many  cases  it  will  be  found  advisable 
to  embody  in  such  Articles  or  Constitution  the  main  facts  set 
forth  in  the  petition  to  the  Bishop.] 


APPENDIX  G. 

FORMS  FOR  POSTULANTS  AND  CANDIDATES  FOR  HOLY 
ORDERS. 

[The  forms  following  denominated  "  Canonical,"  are  those  act- 
ually prescribed  by  the  general  Canons,  and  must  be  strictly  fol- 
lowed.] 

NOTICE   OF   INTENTION   TO    BECOME   A    POSTULANT. 

To  the  Right  Reverend ,  Bishop  of : 

Right  Reverend  and  Dear  Sir: 

Having  resolved  to  devote  myself  to  the  Sacred  Ministry  of  the 
Church,  and  believing  myself  to  be  inwardly  moved  thereto  by  the 
Holy  Spirit,  I  hereby,  with  the  approval  of  my  Pastor  {or  if  he  has 

no  Pastor,  of  the  Rev. ,  a  Presbyter  of  the  Church  to  whom 

I  am  personally  known),  and  whose  letter  I  herewith  inclose,  give 
the  notice  required  by  Canon  I,  "Of  Postulants ,"  and  respectfully 
ask  to  be  admitted  as  a  Postulant  in  your  Diocese. 

My  full  name  is ;  I  was  born  in ,  on  the 

day  of  ,  A.D. ;  I  have  been  a  resident  in  this 

Diocese  (or  Missionary  District)  for years  (or  months);  I 

was  baptized  on  the day  of ,  A.D. ,  by  the  Rev. 

;  confirmed  in Church, ,  on  the 

day  of ,  A.D. ,  by  the  Right  Reverend , , 

Bishop  of ;  was  admitted  to  the  Holy  Communion  in 

Church, ,  on  the day  of ,  A.D. . 

I  have  never  before  applied  for  admission  as  a  Postulant  or  Can- 
didate for  Holy  Orders.  (If,  however,  he  has  before  so  applied,  he 
must  state  the  fact,  with  an  explanation  of  the  same.) 

I  am  moved  to  seek  the  Sacred  Ministry  (here  state  the  grounds, 

etc.). 

[Signed] 


334  LA  W  OF  THE  CHURCH. 

FORM     OF     POSTULANT'S      APPLICATION      TO     THE     STANDING 
COMMITTEE  FOR  RECOMMENDATION   AS   A   CANDI- 
DATE  FOR  HOLY   ORDERS. 

71?  the  Standing  Committee  of  the  Diocese  of „■ 

{Place) 
{Date) 

I, ,  being  years  of  age,  and  having  been  duly  re- 
ceived as  a  Postulant  in  this  Diocese,  do  hereby  make  application 
to  be  by  you  recommended  to  the  Bishop  of ,  for  admis- 
sion as  a  Candidate  for  Holy  Orders. 

I  enclose  herewith  the  Bishop's  Certificate  of  my  admission  as  a 
Postulant,  and  the  Canonical  certificate  of  the  Minister  and  a 
majority  of  the  Vestry  of  the  Parish  to  which  I  belong. 

[Signed]  . 

CANONICAL  CERTIFICATE  OF  MINISTER   AND   VESTRY. 


To  the  Standing  Committee  of : 

Place,  Date, 

We,  whose  names  are  hereunder  written,  testify  to  our  belief 
(based  on  personal  knowledge  or  on  evidence  satisfactory  to  us) 

that is  sober,  honest,  and  godly,  and  that  he  is  a 

communicant  of  this  Church  in  good  standing.  We  do  further- 
more declare  that,  in  our  opinion,  he  possesses  such  qualifications 
as  fit  him  to  be  admitted  a  candidate  for  Koly  Orders. 

[Signed] . 

[This  certificate  must  be  signed  by  the  Minister  of  the  Parish  to 
which  the  applicant  belongs,  and  by  a  majority  of  the  whole  Ves- 
try, and  must  be  attested  by  the  Minister,  or  by  the  Secretary  of 
the  Vestry,  as  follows  :] 

I  hereby  certify  that  the  foregoing  certificate  was  signed  at  a 

meeting  of  the  Vestry  of Parish,  duly  convened  at  , 

on  the day  of ,  and  that  the  names  attached  are  those 

of  all  (or  a  majority  of  all)  the  members  of  the  Vestry. 

[Signed]  — , 

Minister  or  Secretary. 


APPENDICES.  335 

[Care  should  be  taken  to  have  the  above  certificate  signed  by 
the  members  of  the  Vestry  during  the  meeting  of  the  Vestry. 
Signing  the  certificate  after  the  meeting  had  adjourned  would  not 
be  a  sufficient  compliance  with  the  Canon,  which  requires  that  the 
attestation  to  the  certificate  must  state  that  it  was  signed  "  at  a  meet- 
ing duly  convened"  {See  Canon  2,  Section  i.,  of  the  Digest.) 
If  the  Parish  to  which  the  applicant  belongs  be  without  a  Minis- 
ter, the  certificate  may  be  signed  by  any  Presbyter  of  the  Diocese 
in  good  standing,  the  reason  therefor  being  stated  in  the  attesting 
clause.  If  there  be  no  Parish  at  the  place  of  residence  of  the  ap- 
plicant, the  certificate  may  be  signed  by  any  Presbyter  of  the  Dio- 
cese in  good  standing,  and  by  four  Laymen,  communicants  of  the 
Church,  in  good  standing,  in  which  case  the  reasons  for  departing 
from  the  regular  f^rm  must  be  stated  in  the  attesting  clause,  which 
shall  be  signed  by  the  same,  or  some  other  Presbyter  of  the 
Church,  and  shall  be  in  the  following  words,  viz.] : 

I  hereby  certify  that  th~  Laymen  whose  names  are  attached  to 
the  foregoing  certificate  are  communicants  of  this  Church  in  good 
standing,  and  that  this  form  of  certificate  was  used  for  no  reasons 
affecting  the  moral  or  religious  character  cf  the  candidate,  but  be- 
cause {here  give  the  reasons  for  departing  from  the  regular  form). 
[Signed]  

Presbyter  of  the  Diocese,  or  Missionary  District  of . 


[In  case  the  applicant  should  have  been  a  Minister  or  Licentiate 
in  some  other  body  of  Christians,  the  certificate  to  the  Standing 
Committee  may  be  signed  by  eight  Adult  Laymen,  members  in  good 
standing  of  the  denomination  from  which  the  applicant  has  come, 
or  members  of  the  Church,  or  in  part  members  of  the  Church,  and 
in  part  members  of  the  said  denomination.  These  signatures  and 
the  good  standing  of  the  signers  must  be  attested  by  some  person 
or  persons  known  to  a  member  of  the  Standing  Committee,  or  else 
under  the  seal  of  a  Notary  Public  in  the  following  words,  viz. :] 

I  do  hereby  certify  that  the  names  attached  to  the  foregoing  cer- 
tificate are  genuine,  and  are  those  of  persons  in  good  standing, 
members  of  {as  the  case  may  be). 

[Signed] 


336  LA  W  OF  THE  CHURCH. 

CANONICAL  CERTIFICATE  TO   BE  LAID  BEFORE  THE  STANDING 

COMMITTEE  IF  THE  APPLICANT  BE  A    MINISTER 

OF  ANOTHER   CHRISTIAN   BODY. 


To  the  Standing  Committee  of .- 

Place,  Date, 

We  do  hereby  certify  that  we  are  personally  acquainted  with 

;  that  he  has  become  a  communicant  of  this  Church, 

and  that  we  believe  him  to  be  sober,  honest,  and  godly.  Further- 
more, we  are  satisfied  after  personal  examination  and  due  inquiry 
concerning  him  as  to  his  former  religious  relations,  that  he  accepts 
the  Doctrine,  Discipline  and  Worship  of  this  Church,  and  that  his 
change  of  relations  has  not  arisen  from  any  circumstances  unfav- 
orable to  his  moral  or  Christian  character,  or  on  account  of  which 
it  may  not  be  expedient  to  admit  him  to  the  Ministry  of  this 
Church. 

[Signed]  


[This  certificate  must  be  signed  by  two  Presbyters  of  the  Church 
known  to  the  Committee.] 


CANONICAL    TESTIMONIAL  OF   RECOMMENDATION    BY  THE 
STANDING   COMMITTEE. 

To  the  Right  Reverend ,  Bishop  of: 

We,  being  a  majority  of  all  the  members  of  the  Standing  Com- 
mittee of ,  and  having  been  duly  convened  at , 

do  testify  that  from  personal  knowledge  or  from  certificates  laid 

before  us,  we  are  well  assured  that is  sober,  honest 

and  godly  ;  and  that  he  is  a  communicant  of  this  Church  in  good 
standing ;  and  we  do  furthermore  declare  that,  in  our  opinion,  he 
possesses  qualifications  which  fit  him  to  be  admitted  a  Candidate 
for  Holy  Orders. 


APPENDICES.  337 

In  witness  whereof,  we  have  hereunto  set  our  hands  this 

day  of ,  in  the  year  of  our  Lord     . 

[Signed] 

FORM  OF  CANDIDATE'S  APPLICATION  TO   THE  STANDING  COM- 
MITTEE   FOR   RECOMMENDATION    TO    THE    BISHOP   FOR 
ORDINATION  TO  THE  SACRED  ORDER  OF  DEACONS. 

To  the  Standing  Committee  of  the  Diocese  of : 

{Place) 
(Date) 

I, ,  a  Candidate  for  Holy  Orders  in  this  Diocese,  do 

hereby  make  application  to  be  by  you  recommended  to  the  Bishop 
of  ths  Diocese,  for  ordination  to  the  Sacred  Order  of  Deacons.  I 
was  born  in ,  on  the day  of ~,  18 — . 

I  inclose  herewith,  as  required  by  Canon,  the  certificate  of  the 
Bishop,  as  to  the  date  of  my  admission  as  a  Candidate,  and  the 

character  of  my  candidateship;  the  certificate  of  the  Rev. ,  a 

Presbyter  of  the  Church ;  and  a  certificate  from  the  Minister  and 
Vestry  of  the  Parish  of  which  I  am  a  member. 
[Signed] 


CANONICAL  CERTIFICATE  OF  A  PRESBYTER. 

To  the  Standing  Committee  of ; 

{Place) 
(Dale) 

I  hereby  certify  that  I  am  personally  acquainted  with , 

and  that  I  believe  him  to  be  well  qualified  to  minister  'n  the  Office 
of  Deacon  to  the  glory  of  God  and  the  edification  of  His  Church. 
[Signed] 

CANONICAL  CERTIFICATE  OF   MINISTER  AND   VESTRY. 

To  the  Standing  Committee  of ; 


Place,  Date, 
We  do  certify  that,  after  due  inquiry,  we  are  well  assured  and  be- 
lieve that ,  for  the  space  of  three  years  last  past,  hath 

lived  a  sober,  honest  and  godly  life,  and  that  he  is  loyal  to  the  Doc- 


338  LA  W  OF  THE  CHURCH. 

trine,  Discipline  and  Worship  of  this  Church,  and  does  not  hold 
anything  contrary  thereto.  And,  moreover,  we  think  him  a  person 
worthy  to  be  admitted  to  the  Sacred  Order  of  Deacons. 

[Signed]  Minister  of Parish. 

Vestry  of . 


[This  certificate  must  be  attested  by  the  Minister  of  the 
Parish,  or  by  the  Clerk  or  Secretary  of  the  Vestry,  as  fol- 
lows, viz.:] 

I  hereby  certify  that is  a  member  of Parish  in 

,  and  a  communicant  in  the  same  ;  that  the  foregoing  cer- 
tificate was  signed  at  a  meeting  of  the  Vestry  duly  convened  at 

on  the  day  of  ,  and  that  all  the  names 

attached  are  those  of  all  (or  a  majority  of  all)  of  the  members 
of  the  Vestry. 

[Signed]  Minister  of , 


or  Clerk  or  Secretary  of  Vestry. 

[Care  should  be  taken  to  have  this  certificate  signed  by  the 
members  of  the  Vestry,  during  the  meeting,  and  before  the  ad- 
journment thereof. 

If  the  Parish  be  without  a  Minister,  the  certificate  may  be  signed 
by  the  Vestry  and  any  Presbyter  of  the  Diocese  in  good  standing. 
The  reason  for  so  departing  from  the  regular  form  must  be  stated 
in  the  attesting  clause.  If  there  be  no  Parish  at  the  place  of  resi- 
dence of  the  Candidate,  the  certificate  may  be  signed  by  any  Pres- 
byter of  the  Church  in  good  standing,  and  six  Laymen,  communi- 
cants of  this  Church  in  good  standing. 

In  such  case,  the  reasons  for  departing  from  the  regular  form 
must  be  given  in  the  attesting  clause,  which  shall  be  signed  by  a 
Presbyter  in  good  standing  in  the  following  words,  viz. :] 

I  hereby  certify  that  the  laymen  whose  names  are  attached  to 
the  foregoing  certificate  are  communicants  of  this  Church  in  good 
standing,  and  that  this  form  of  certificate  was  used  for  no  reasons 
affecting  the  moral  or  religious  character  of  the  Candidate,  but 


APPENDICES  339 

because  (here  give  the  reasons  for  departing  from  the  regular 
form.) 

[Signed] 


CANONICAL   TESTIMONIAL  OF  THE    STANDING   COMMITTEE. 
(DEACON'S   ORDERS.) 

To  the  Right  Reverend ,  Bishop  of .• 

We,  being  a  majority  of  all  the  members  of  the  Standing  Com- 
mittee of ,  and   having  been  duly  convened  at ,  do 

testify  that ,  desiring  to  be  ordered  Deacon,  hath 

laid  before  us  satisfactory  certificates  that  for  the  space  of  three 
years  last  past  he  hath  lived  a  sober,  honest,  and  godly  life,  and 
that  he  is  loyal  to  the  Doctrine,  Discipline,  and  Worship  of  this 
Church,  and  does  not  hold  anything  contrary  thereto.  And  we 
hereby  recommend  him  for  ordination  to  the  Diaconate. 

In  witness  whereof,  we  have  hereunto  set  our  hands,  this  

day  of ,  in  the  year  of  our  Lord . 

[Signed] 


FORM   OF   CANDIDATE  S   APPLICATION    FOR   ORDINATION   TO 
THE  PRIESTHOOD. 

To  the  Standing  Committee  of  the  Diocese  of .• 

{Place) 
{Date) 

I, ,  a  Candidate  for  Priest's  Orders  in  this  Diocese,  do 

hereby  make  application  to  be  by  you  recommended  to  the  Bishop 
of  this  Diocese  for  ordination  to  the  Sacred  Order  of  Priests.     I 

was  born  on  the day  of ,  a.d. .     I  inclose 

herewith  the  certificate  of  the  Bishop  declaring  that  the  term  of  my 
candidateship  and  the  term  of  my  service  in  the  Diaconate  have 
been  completed  ;  also  the  certificate  of  the  Minister  and  Vestry  of 
the  Parish  where  I  reside. 

[Signed]  . 


34o  LA  W  OF  THE  CHURCH. 


CANONICAL   CERTIFICATE   OF   THE    MINISTER    AND    VESTRY 
OF  THE  PARISH. 


To  the  Standing  Committee  of 


Place,  Date, 

We  do  certify  that,  after  due  inquiry,  we  are  well  assured  and 

believe  that  the  Reverend .  Deacon,  since  the 

day  of in  the  year ,  being  the  date  of  his  ordination 

to  the  Diaconate  [or  for  the  space  of  three  years  last  passed],  hath 
lived  a  sober,  honest,  and  godly  life,  and  hath  not  written,  taught, 
or  held  anything  contrary  to  the  Doctrine,  Discipline,  or  Worship 
of  this  Church.  And,  moreover,  we  think  him  a  person  worthy  to 
be  admitted  to  the  Sacred  Order  of  Priests. 

[Signed] 

[The  Canon  requires  that  this  certificate  must  be  attested  by  the 
Minister  of  the  Parish,  or  by  the  Clerk  or  Secretary  of  the  Vestry,  as 
follows :] 

I  hereby  certify  that  the  Reverend is  a  resident  of 

Parish  in ;  that  the  foregoing  certificate  was  signed 


at  a  meeting  of  the  Vestry  duly  convened  at on  the 

day  of ,  and  that  the  names  attached  are  those  of  all  (or  a 

majority  of  all)  the  members  of  the  Vestry. 

[Signed] 

The  Minister  of , 


or  Clerk  or  Secretary  of  Vestry. 

[The  Canon  provides  that  if  the  Parish  be  without  a  Minister,  it 
shall  suffice  that  in  his  place  the  certificate  be  signed  by  some 
Presbyter  of  the  Diocese  or  Missionary  District  in  good  standing, 
the  reason  for  the  substitution  being  stated  in  the  attesting  clause. 

The  Canon  also  provides  that  if  there  be  no  Parish  where  the 
Candidate  resides,  the  Standing  Committee  may  accept  a  certifi- 
cate in  the  same  words,  signed  by  one  Presbyter  of  the  Church  in 
good  standing,  and  six  Laymen,  communicants  of  the  Church  in 
good  standing,  and  the  said  Presbyter,  or  some  other  Presbyter 


APPENDICES.  341 

of  this  Church  in  good  standing,  shall  attest  the  certificate,  and 
in  the  following  words :] 

I  hereby  certify  that  the  laymen  whose  names  are  attached  to 
the  foregoing  certificate  are  communicants  of  this  Church  in  good 
standing,  and  that  this  form  of  certificate  was  used  for  no  reasons 
affecting  the  moral  or  religious  character  of  the  candidate,  but 
because  (here  give  the  reasons  for  departing  from  the  regular 
form). 

[Signed] 
Presbyter  of  the  Diocese,  or  Missionary  District  of . 

CANONICAL   TESTIMONIAL  OF   THE   STANDING   COMMITTEE. 
(PRIEST'S   ORDERS.) 

To  the  Right  Reverend ,  Bishop  of ; 


We,  being  a  majority  of  all  the  members  of  the  Standing  Com- 
mittee of  ,  and  having  been  duly  convened  at  ,  do 

testify  that  the  Rev. ,  Deacon,  desiring  to  be  ordered 

Priest,  hath  laid  before  us  satisfactory  certificates  that  since  the 
day  of in  the  year ,  being  the  date  of  his  or- 
dination to  the  Diaconate  [or  for  the  space  of  three  years  last  past], 
he  hath  lived  a  sober,  honest,  and  godly  life,  and  hath  not  written, 
taught,  or  held  anything  contrary  to  the  Doctrine,  Discipline,  or 
Worship  of  this  Church  ;  and  we  hereby  recommend  him  for  ordi- 
nation to  the  Priesthood. 

In  witness  whereof  we  have  hereunto  set  our  hands,  this 

day  of ,  in  the  year  of  our  Lord . 

[Signed] 

[While  the  several  certificates  for  Priest's  Orders  are  substan- 
tially in  the  same  words  as  the  corresponding  certificates  for 
Deacon's  Orders,  yet  it  has  been  deemed  advisable  to  set  forth  the 
required  certificates  in  each  case,  as  the  Canons  state  that  "  No 
certificate  or  testimonial,  the  form  of  which  is  supplied  by  Canon, 
shall  be  valid,  unless  it  be  in  the  words  prescribed." — (Canon  8, 
Section  ii.,  of  the  Digest.) 

All  the  foregoing  forms,  designated  as  "Canonical  "  certificates 
or  testimonials,  are  those  so  supplied  by  Canon,  and  must  be  strictly 
followed.     The  Canons  also  provide  that  "No  Postulant  or  Can- 


342  LA  W  OF  THE  CHURCH. 

didate  for  Holy  Orders  shall  sign  any  of  the  certificates  prescribed 
in  the  foregoing  Canons  of  Ordination." 

Whenever  a  dated  certificate  or  testimonial  is  required,  the 
omission  of  the  date  shall  render  such  certificate  or  testimonial  li- 
able to  rejection. — {Canon  8,  Section  ii.,  of  the  Digest.') 

Whenever  the  certificate  of  a  Vestry  is  required,  such  certifi- 
cate must  be  signed  by  a  majority  of  the  whole  Vestry,  at  a  meet- 
ing duly  convened,  and  the  fact  must  be  attested  by  the  Secretary 
of  the  said  Vestry  or  by  the  Minister. — {Canon  8,  Section  ii.,  of 
the  Digest.) 

It  should  be  noted,  as  has  before  been  remarked,  that  "at  a 
meeting  duly  convened"  means  while  the  meeting  is  still  convened, 
and  not  after  the  meeting  has  adjourned.  A  certificate  signed  by 
the  Vestry  after  the  meeting  had  adjourned  would  be  invalid,  and 
the  Secretary  or  Minister  could  not  attest  that  it  was  signed  "  at 
a  meeting  duly  convened,"  as  the  Canon  explicitly  requires. 

Too  great  care  cannot  be  taken  to  comply  strictly  with  every  re- 
quirement of  the  Canons  relating  to  Ordination.] 


APPENDIX  H. 

MISCELLANEOUS  FORMS. 

NOTICE  TO   THE   BISHOP   OF  THE    ELECTION   OF  A   RECTOR  OR 

ASSISTANT    MINISTER. 

TO  the  Right  Reverend ,  Bishop  of : 
We,  the  Church  Wardens  [or,  in  case  of  an  Assistant 
Minister,  We,  the  Rector  and  Church  Wardens],  do  certify- 
to  the  Right  Rev.  {naming  the  Bishrp],  or  to  the  Rev.  [naming 
the  President  of  the  Standing  Committee],  that  [naming  the  per- 
son] has  been  duly  chosen  Rector  [or  Assistant  Minister,  as  the 
case  may  be]  of  [naming  the  Parish  or  Church], 

[Signed]  ,  Church  Wardens. 

Dated  at ,  the day  of ,  A.D.  19 — . 

[In  case  of  the  election  of  an  Assistant  Minister,  the  Rector 
must  also  sign  this  notice. —  {Canon  15,  Section  v.,  of  the 
Digest.)] 

CANONICAL   LETTER   DIMISSORY. 

To  the  Right  Reverend ,  Bishop  of .• 

I  hereby  certify  that  ,  who  has  signified  to  me  his  desire 

to  be  transferred  to  the  Ecclesiastical  Authority  of ,  is  a 

Presbyter  (or  Deacon),  of ,  in  good  standing,  and  has  not, 

so  far  as  I  know  or  believe,  been  justly  liable  to  evil  report,  for 
error  in  religion   or  viciousness  of  life,  for  three  years  last  past. 

[Signed]  ,  Bishop  of . 

Dated  at ,  the day  of ,  A.D.   19—. 

CANONICAL    CERTIFICATE  OF  TRANSFER. 

I   hereby   certify  that  the    Rev.  has   been   canonically 

transferred  to  my  jurisdiction,  and  is  a  Minister  in  good  standing. 

[Signed]  ,  Bishop  of . 

Dated  at  ,  the —  day  of ,  A.D.  19—. 


344  APPENDICES. 

FORMS   FOR   COMMENDATORY    LETTERS. 

{Place.)  ,  Date . 

In  the  name  of  the  Father,  and  of  the  Son,  and  of  the  Holy 
Ghost.     Amen. 

I  certify  that  the  bearer  of  this  letter, ,  is  a  Communicant 

in  good  standing  of  the  Parish  {or  Mission)  of  ,  and  upon 

his  {or  her)  request  is  hereby  dismissed  from  our  pastoral  care, 

and  commended  to  the  pastoral  care  of . 

[Signed]  , 

Rector  {or  Warden). 

I  hereby  certify  that  ,  who  has  signified  to  me  his  {or 

her)  desire  to  be  transferred  to  the  Parish  of  ,  is  a  member 

of  the  Church,  and  has  been  a  communicant  in  good  standing  for 
years  past  in  the  Parish  of  ,  and  as  such  is  affection- 
ately commended  to  the  charge  of  ,  as  his  {or  her)  Pastor 

in  the  Church  of  God. 

This  certificate,  if  not  presented  in  six  months  from  date,  may  be 
held  to  be  void,  and  it  is  not  to  be  used  as  a  general  testimonial. 

[Signed]  . 

Dated, . 

[It  is  made  the  duty  of  every  communicant,  by  the  Canon  of  the 
General  Convention,  to  apply,  on  removal  from  the  Parish,  for  a 
letter  testimonial  of  his  or  her  standing.  {Canon  40,  Section  i.,  of 
the  Digest.)  In  many  of  our  Parishes  this  Canon  is  practically  a 
dead  letter,  thus  rendering  the  statistics  of  the  Church  relating  to 
the  communicants  thereof  less  reliable  than  they  ought  to  be.  More 
positive  legislation  on  this  question  by  the  General  Convention  of 
the  Church  is  sadly  needed.] 


TABLE  OF  CASES. 


TABLE  OF  CASES. 


[THE  NUMBERS   REFER  TO  THE  PAGES.] 


Alston  v.  Attlay  33 

Appeal  of  Ritenhouse.  .  161,307 

Asher  v.  Calcraft 293 

Avery  v.  Tyringham 243 

Bailey  v.  M.  E.  Church 155 

Baker  et  al.  v.  Wood. 

137,196,198,255 
Bartlett  et  al.  v.  Hipkins 

41,45,241 

Batterson  et  al.  -v.  Thompson 

et  al. . .  .41,106,110,243,263 

Baxter  v.  McDonald 176 

Beal  v .  Fox 34 

Beck  v.  Hanscom 202 

Beckett  v.  Lawrence 307 

Berryman  v.  Perkins 191 

Bird  v.  Smith .  .172 

v.  St  Mark's  Church 

179.  243 
Blake  v.  Church  Wardens,  etc. 
277 

Boehm  v.  Engle 23 

Bogardus  v.  Trinity  Church 

23,  42,  104 
Brick  Pres.  Church  v.  Mayor.  168 

Brown  v  Langdon 63 

Burder  v.  Mayor 33 

Burton  v.  Henson 293 

Cammeyer  v.  The  Churches.etc. 

161 

Canal     Appraisers     v.    People 

et  al 23,42 

Cargill  v.  Sewall 264 

Caudry's  Case 31 

Chase  v.  Cheney. 

93,  no,  166, 171,  177 
Christ  Church  v.  Phillips. 

93,171,176 

Church  v.  Bowden 166 

> v.  Church 159 


Church    Wardens    St.    John's 
Church.etc  ,  v  Parishioners, 

etc 276 

Commendams,  Case  of  the. . .  31 

Commonwealth  v.  Cain 167 

v.  Knowlton 23 

v.  Leach  et  al 23 

Comstock  v.  Howd 167 

Connitt  et  al.  v.  Dutch  Church 

et  al 176,186 

Constant  v.  Rector,  etc 161 

Craig  v.  First  Pres.  Church,  etc. 

195 

Crump  v.  Morgan.  .41,  104,  no 

Dahl  v.  Palache 121 

Daniel  v    Wood 165 

D-irtmouth  College   v.    Wood- 
ward  155 

Deaderick  v.  Lampson 166 

Dean  v.  Met.  El.  R.  R.  Co . .  2 1 8 
DeRuyter  v.  Trustees,  etc. 

19,  23,  34,  42 
Dewdny  v.  Good . .  257,  276,  304 
Diligent  Fire  Co.  v.  Common- 
wealth   155 

Doremus  v.  Dutch  Church..  186 

East     Norway     Lake     Church 

et  al.  v.  Halvorson 176 

Elizabeth,  The 218 

Evans  v.  Dodson 277 

— v.  Evans 245 

Evars  v  Owens 39 

Eyre  v.  Jones 274 

First  Bap.  Church  v.  Bigelow 

164 

Church,etc.,f.  Hilleryi32 

Fowler  v.  Pierce 191 

Gaff  et  al.  v.  Greer  etal.  .93,176 


348 


LA  W  OF  THE  CHURCH. 


Gaines  v.  Coates 1 54 

Gaskins  v.  Gaskins.  .41,104,110 
Ger.  Ref.  Church  v.  Seibert.  .93 
Gorham  v.  Bishop  of  Exeter.21 2 
Greenslade v.  Darby..  .  183,  262 
Griffith  v.  Dighton 305 

Hallman  v.  Bennett 218 

Hartt  v.  Harvey 139 

Harward  v-  Arden 237,  304 

Heeney  v.  St.  Peter's  Church 

no,  165 

Heiskell  v.  Mayor, etc 155 

Hennessy  v.  Walsh 177 

Humbert    v.    St.    Stephen's 

Church..  23,1 10,239,258,264 

Hutchins  v.  Denziloe 267 

In  re  Directors  L.  I.  R.  R.  Co. 
167 

Isham  v.  Fullager 166 

v.  Trustees,  etc 160 

J  ackson  v.  Adams 294 

James  v.  Dubois 218 

Jennings  v,  Scarborough,  etc. 

1 10,  1 76,  240,  243,  247,  263 
Jones,  Case  of  Rev.  Cave. . .  107 

-v.  Lamar 218 

v.  Wadsworth 1 60 

Kellogg  v.  Dickenson 165 

King  v.  Brower 202 

v.  Miller 202 

Kuns  v.  Robertson 176 

Lee  v.  Matthews 256,  305 

Leonard  v.  Lent 161 

Livingston  v.  Rector  et  al. 

109,  1  ti,  171,  176,  251,  263 
Lynd  v.  Menzies 
109, 1 10, 163 ,183,  243,  260,  263 

McCall  v.  The  Byram  Mfg.  Co. 

129 

McDermott  v.  Board  of  Police, 

etc 168 


Madison  Ave.   Bap.  Church  v. 

Bap.  Church 1 34 

Manuel  v.  Manuel 218 

Mirshall?/.  Andrew. 

257.277.305 

Mason  et  al.  v.  Muncaster  et  al. 

92,  no,  159 

Mayor  et  al.   of    Baltimore    v. 

Howard 218 

Miller  v.  Churcn 155 

Montclair  v.  Ramsdell 218 

Moore  v.  Rector,  etc 197 

Neilson's  Appeal 201 

Nelson  v.  Benson 166 

O'Donovan  v.  Chatard 176 

Oregon  S.  S.  Co  v.  Otis 192 

Palmer  v.  Stumph 218 

Patterson  v.  Winn 23 

Pendleton  v.  Bank  of  Ky.  ..218 
People  v.  Albany  and  Sus.  R.  R. 

Co 121 

v.  Dfcvin 148 

et  al.  v.  Tuthill  et  al. 

125,141,  143 

ex  rel.  v.  Chicago   Live 

Stock  Exchange 168 

Kenney  v.   Winans. 

204,205,  308 

Peck  v.  Conley. .  179,  221 

Remington  v.  Rector.etc. 

200,255 

v.  Peck 193 

v.  Phillips 148 

—v.  White 139 

>.  Whiteside 195,  202 


People's  Bank  v.  St.  Anthony's 

Church 161,  307 

Pounders.  Ash- 93, 171, 176 

Prickett  v.  Wells 1 68, 1 7 1 

P.  R.R.  Co.  v.  Canal  Corn's.  154 

Queen  v.  D'Oyly. 

137,  190,  196,199,255 
v.  Millis 32, 39 


TABLE  OF  CASES. 


349 


Rector    v.    Vestry    St.    John's 

Church,  etc.  258,  269,  274 
St.  James'  Church, etc.  v. 

Huntington,  etc.  ..178,  219 
Redhead  v.  Wait  etal.  .257,304 

Reg.  v.  Best 191 

Rex  v.  Bellringer 194 

v.  Buller 194 

v.    Church   Wardens   of 

St.  Bartholomew's 205 

v.    Church   Wardens  of 

St.  Matthew's 205 

v.  Gaborian 205 

v.  Martin  Rice 294 

v.  Miller 194,197 

v.  Morris 194,  197 

v.  Thornton 194,  197 

Reynolds  v.  Monkton 293 

Ritchings  v.  Cordingley. 

257.  277,  304 
Robertson  v.  Bullions  et  al.  .1 54 

Rogers,  ex  parte 195,  202 

Runkel  v.  Winemiller 264 

Sackett  v.  Sackett 23 

St.  George's-in-the-East,   Case 

of 268 

St.    George's,  Wolverhampton, 

Case  of 268 

St.  Mary's  Church,  Case  of. 

195,  196,  202 

St.  Patrick's  Church  v.  Gavelon. 

161 

St.  Paul's  Church  v.  Ford.  .  164 

St.  Stephen's  Church  Cases. 

151, 191,  205 
Salem  Mill  Dam  Corp.  v.  Ropes. 

154 
School  Directors,  ex  parte.  .191 
Shannon  et  al.  v.  Frost  et  al.\j6 

Shaw  v.  Beveridge 165 

Sheldon  v.  Parish,  etc 179 

v.  Vail 165 

Smith  v.  Law 193 


v.  Moffat 1 54 

Society   et  al.  v.    New  Haven 

etal 63,  no 

Sohier  v.  Trinity  Church 

93.  159 

Stack  v.  O'Hara 93.176 

Starkey  v.  Barton 302 

State  exrel.  Dunlap  v.  Stewart 

et  al 13; 

v.  Kendall 206 

Stavely  v.  Ullithorne 33 

Stocks  v.  Booth 183,  263 

Stoughton  v.  Reynolds 198 

Taylor  v.  Griswold 1 67 

v.  Timson 293 

Terrett  et  al.  v.  Taylor  etal. 

42,  62,  92,  no,  183,  264 

Thompson  v.  Weller 154 

Town  of  Pawlet  v.  Clark  et  al.20 

Underwood  v.  Waldron. ...  167 

Union  Colony  v.  Elliott 191 

United  Brethren,  etc.,  2/.    Van 

Dusen 161,  307 

University     of     Maryland     v 

Williams 195 

Vanness  v.  Packard 20 

Vestry  etal.  v.  Barksdale. . .  .45 

St.     Luke's     Church    v. 

Matthews 167 

Walker  v.  Wainright 176 

Watson  v.  Jones.93, 110,160.171 

Wheaton  v.  Gates 165 

White  Lick  Quaker  Case.. . .  93 

Williams  v.  Glenister 293 

Wilson  v.  M'Math. 

137.  197.  268,  274 
Worrel  v.  First  Pres.  Church, 

179 
Wyndam  v.  Cole 270,  274 

Youngs  v.  Ransom. .179,242, 260 


INDEX. 


INDEX. 


Act  of  Convention  of  1786,  99. 

Sent  to  English  Archbishops,  100. 
Act  of  Parliament,  99. 
Acts  of  Henry  VIII.,  28. 
Address  of  the  Clergy  to  the  Archbishop  of  York,  59. 

Convention  of  1785  to  the  English  Archbishops,  72. 

Convention  of  1786  to  the  English  Archbishops,  74. 
Reply  of  the  Archbishops,  97. 
Admission  in  the  English  Church,  225. 
Alienation  of  real  Church  property,  158. 

Bishop's  consent  when  necessary,  159,  185,  204. 
.  Consent  of  Bishop  and  Standing  Committee,  1 59. 

Rector  necessary,  182,  184. 

Cannot  be  made  in  absence  of  Rector,  204. 

When  consent  of  members  of  the  Parish  necessary  to,  1 50,  1 59. 

Can  only  be  made  for  Church  purposes,  160. 
Alterations  in  Book  of  Common  Prayer,  71,  82. 
American  Church,  Organization  of,  65,  85. 
Annual  Parsh  meetings.     (See  Parish  meetings.) 
Answer  to  Archbishop's  letter,  98. 

Antecedent  Obligation  of  the  American  Church  92,  96,  103. 
Ante- Reformation  Law,  Continuation  of,  30. 
Apostles'  Creed,  74,  94. 
Archbishop  of  Canterbury,  Letter  of,  99. 

York,  Address  to,  59. 
Archbishops  of  Canterbury  and  York,  Address,  to,  72,  74. 

Reply  of,  97. 
Articles  of  Constitution  as  set  forth  by  Convention  of  1789,  77. 

Of  Religion,  88. 
Assistant  Minister,  Rector  to  appoint,  285. 

Vestry's  power  in  appointment  of,  285. 
No  right  to  be  present  at  Vestry  meetings,  286. 
Athanasian  Creed,  89. 


354  LA  IV  OF  THE  CHURCH. 

Attendant,  Definition  of  regular,  140. 
Augustine,  Arrival  in  Britain  cf,  24. 

Instructions  of  Pope  Gregory  to,  25. 

B 

Benefice,  admission  to  a,  225. 
Presentation  to  a,  226. 
Institution  into  a,  226. 
Induction  into  a,  227. 
Bishop,  the  source  of  authority  in  his  Diocese,  171,  184. 
Diocesan  jurisdiction  in  the,  118,  222. 
Powers  of  a  Rector  descend  from,  185. 
His  consent  necessary  to  incorporation  of  a  Church,  119. 

When  necessary  to  alienation  of  Church  realty,  159, 

185,  204. 
When  his  duty  to  accept  Letter  Dimissory,  209,  211,  217. 
When  not  required  to  accept  it,  209,  216,  219. 
To  give  Certificate  of  Transfer,  210. 
To  give  notice  of  acceptance  of  Certificate,  210. 
Minister  cannot  officiate  as  Rector  without  such  Certificate,  210. 

Cannot  officiate  in  his  Diocese  without  license  of,  210. 
His  right  to  inquire  into  qualifications   of  a   Minister,  211 

213,  229. 
To  decline  to  transmit  Certificate  of  Election  of  Rector 

of  record,  215,  222. 
To  inhibit  Minister  from  officiating  in  his  Diocese,  220. 
His  consent  necessary  to  the  election  of  a  Rector,  169,  172, 

177,  184,  207,213,  216,  219. 
The  ultimate  arbiter  in  dissolution  of  rectorship,  242,  245. 
His  consent,  when  necessary,  to  placing  ornaments  in  Church, 

277. 
Can  alone  act  judicially  in  case  of  person  repelled  from  the 
Holy  Communion,  282. 
Bishop  of  London,  Diocesan  of  Colonial  Church,  47,  50,  61. 
Bishops,  House  of,  when  organized,  79. 

Synod  of  British,  25. 
Book  of  Common  Prayer,  alterations  in,  71. 


INDEX. 


355 


Book  of  Common  Prayer,  no  material  alterations  from  English,  82. 

Preface  of,  83,  92,  103. 

Revision  of,  80. 

When  set  forth  and  established,  83, 
Brittanic  Church,  24. 
Brockway  Case,  219. 
By-laws,  Vestry  may  make,  167. 


Call  and  Election  of  Rector,  168,  207. 
Canon  Law,  Force  of  Foreign,  30,  33,  35. 
When  introduced  into  England,  32. 
Of  Church  of  England,  3f,  41,  94,  106,  in. 

A  part  of  Common  Law  of  the  Colonists,  40. 
Birthright  of  Colonists,  40. 
Canon  on  Music,   180,  268. 
Why  enacted,  268. 
Its  history,  271. 
Canon  18  of  Title  I.  of  the  Digest  considered,  211. 

Intent  of  the  Canon,  216. 
Canons,  Code  of,  adopted,  76,  80,  85. 

Of  1603,  35,  94,  95,  163,  212.  289,  299,  300. 
Construction  and  interpretation  of,  181,  212,  216,  218. 
Casting  vote  in  case  of  a  tie,   199  255. 
Certificate  of  Change  in  Name  1  f  Corporation,  151. 
In  Number  of  Vestiymen,  150,  188. 
Of  Election  of  Wardens  and  Vestrymen,  126,  148. 
Of  Delegates  to  Diocesan  Convention,  149. 
Of  Rector,  208. 

Form  of,  208. 
Of  Incorporation  of  a  Church,  126. 
To  be  filed,  126. 
How  executed,  127. 
What  it  should  contain,  126,  128. 
To  be  transcribed  in  Parish  record  book,  129. 
Of  Transfer  of  a  Minister,  210. 
Form  of,  210. 


356  LA  W  OF  THE  CHURCH. 

Certificate  of  Transfer  of  Communicants,  299. 
Change  in  Number  of  Vestrymen,  150,  187. 
Change  of  Name  of  Corporaiion,  151. 
Choir,  definition  of,  272. 

Under  control  of  the  Rector,  179,  182,  268,  275. 
Choirmaster,  when  not  a  regular  contributor,  144. 
Church  edifice  in  possession  of  Rector,  183,  236,  257. 
Incorporation  of.     (See  Incorporation  of  Churches.) 
In  the  Colonies,  date  of,  33. 
In  Connecticut,  55,  59,  66. 
Maryland,  45,  47,  49,  52,  66,  307. 
Massachusetts,  56,  69. 
New  Jersey,  56,  60. 
New  York,  43,  53,  306. 
Pennsylvania,  53,  68. 
South  Carolina,  44,  48,  53. 
Virginia,  43,  52,  228. 
Of  England,  Canon  Law,  when  introduced  into,  32. 

Part  of  Colonial  Common  Law,  40. 
Common  Law  of,  17,  22,  103. 

Part  cf  Colonial  Common  Law,  17,  103. 
Concordat  of  American  Church  with,  96,  105. 
Discipline  cf,  retained  by  American  Church,  89,  93, 

96,  98,  101. 
Encroachments  of  Roman  Church  on,  27. 
Identity  of  Colonial  Church  with,  50,  55,  104,  108. 
Church  in  the  States  with,  51,  57,  61,  64,  81,  86, 

ico,  104. 
American  Church  with,  86,  88,  104. 
Induction  Office  of,  -25,  227,  237,  239. 
Law  of,  at  time  of  emigration  of  Colonists,  35. 
Laws  in  force  in,  36. 
Liturgy  of,  retained  by  American  Church,  81,  S7,  89, 

94 

(See  also,  Ecclesiastical  Law  of  Church  of  Englaid.) 

Church  property  cannot  be  alienated  without  consent  of  Rector, 

182,  184,  256. 
Cannot  be  alienated  in  his  absence,  204. 


INDEX.  357 

Church  property,  alienation  of,  only  for  Church  purposes,  160,  166. 
When  Bishop's  consent  necessary,  159,  185,  204. 

Standing  Committee's  consent  necessary,  1 59. 
Consent  of  Parish  necessary,  150,  159. 
Power  of  Vestry  over  the,  155,  157,  162. 
Vestry  to  keep  in  good  order  the,  163. 
Church  Tribunals,  when  their  authority  recognized  by  Civil  Courts, 

176,  177,  221,  250. 
Vestry  have  control  of  revenues  of,  165. 
Churchyard,  in  the  possession  of  the  Rector,  183,  256,  263. 
Civil  Courts,  when  they   will  interfere  in  Ecclesiastical  matters, 

176,  221,  250. 
Clergyman,  trial  of  a,  252. 
Code  of  Canons  adopted,  76,  80,  85. 
Codes  of  Law  in  force  in  the  American  Church,  15. 
Colonial  Church,  earliest  date  of,  33. 
Commissaries  to  the,  47. 
Diocesan  of  the,  47,  50,  61,  62. 
Identity  with  Church  of  England  of  the,  50,  55, 104, 108. 

American  Church,  51,  58. 
Induction  in  the,  224,  228. 
Legislation  of  the,  43. 
Colonies,  Vestries  in  the,  306. 

How  modelled,  307. 
Colonists,  Law  of  the  English  Church  at  time  of  emigration  of,  35. 
English  Common  Law  part  of  Common  Law  of,  17,  22,  103. 
Statute  Law  part  of  Common  Law  of,  21. 
Canon  Law  part  of  Common  Law  of,  40. 
Subject  to  the  laws  of  England,  19, 
Commissaries  to  Colonial  Church,  47. 

Committee  appointed  to  confer  with  Clergy  of  New  England,  77. 
Common  Law,  definition  of,  21. 

Of  England,  birthright  of  the  Colonists,  19. 
Part  of  the  Colonial  Law,  17,  22,  103. 
What  composed  of,  21. 
Ecclesiastical,  23,  36,  95,  104. 

Part  of  Colonial  Common  Law,  22,  40,  103. 
Common  Prayer,  alterations  in  Book  of,  71. 


35*  LA  W  OF  THE  CHURCH. 

Common  Prayer,  Preface  of  Book  of,  83,  92. 

Revision  of,  80. 

Set  forth  and  established,  83. 
Common  Seal,  Vestry  may  have  and  use  a,  1 56. 
Communicants,  Wardens  to  be,  126,  299. 

When  Wardens  to  give  letter  of  transfer  to,  299. 
Communion.     (See  Holy  Communion.) 

Concordat  of  American  Church  with  Church  of  England,  96,  105. 
Connecticut,  Church  in,  55,  59,  66. 

Consecration  of  Bishops  Provoost,  Seabury,  and  White,  74. 
Constitution  of  American  Church  proposed,  72. 

When  adopted,  76,  97. 
Constitutions,  Legatine  and  Provincial,  27,  35. 
Contributor,  definition  of  a  regular,  142. 
Convention  of  1784,  69. 

1785.  70,  97- 

1786,  73,  75,  98. 

1789,  75- 
Corporate  capacity  of  Wardens  and  Vestrymen,  161. 
Corporation,  component  parts  of ,  153. 
When  complete,  129. 
Name,  how  changed,  151 

Proceedings  affecting  title  to  be  in,  159. 
D 
Delegates  to  Diocesan  Conventions,  132. 
How  elected,  149. 
To  Special  Conventions,  1 50. 
Deputies  to  General  Convention  of  1789,  powers  of,  76. 
Diocesan  of  Colonial  Church,  47,  50,  61,  62. 
Discipline  defined,  93. 

Of  Church  of  England  retained  by  American  Church,  89,  93, 

96,  98,  101. 
Dissolution  of  rectorship,  241. 

Divine  service  under  exclusive  control  of  the  Rector,  264,  308. 
Duke  of  York,  laws  of  the,  43,  306. 

E 
Ecclesiastical  Common  Law,  23,  36,  95,  104. 


INDEX.  359 

Ecclesiastical  Common  Law  a  part  of  Colonial  Common  Law,  22, 

40,  103. 

Ecclesiastical  Law  of  England  in  1607,  34,  36. 

Of  force  in  the  American  Church,  16,  36,  40,  45, 
50,  58,  61,  81,  86,  89,  92,  95,  102,  105,  107, 
no,  180,  212,  262,  263. 
Modifications  of,  36,  in. 
(See  also  Church  of  England  ) 
Election  of  Delegates  to  Diocesan  Conventions,  132,  149. 
Special  Conventions,  150. 
Wardens  and  Vestrymen,  125,  145,  300. 
Notice  of,  120,  131. 
How  conducted,  125,  133. 
When  by  ballot,  125. 
Qualifications  of,  126,  145. 
Qualifications  of  voters,  124,  139. 
Certificate  of  election  of,  126,  148. 
When  to  be  recorded,  126,  148. 
Of  Rector.     (See  Rector.) 
Encroachments  of  Roman  Church  on  Church  of  England,  27. 
England,  Church  of.     (See  Church  of  England.) 


Foreign  Canon  Law,  30,  33,  35. 

Fundamental  principles  of  Convention  of  1784,  69,  71. 
The  Church,  stated,  170. 


General  Convention  of  1789,  79,  86,  88,  92,  228. 

1792,  85,  8S,  92,  94. 

1804,  228,  232. 

1808,  94,  103,  233. 

1814,  90,  96,  103,  235. 

Power  to  enact  Canon  requiring  Bishop's  consent  t* 
election  of  a  Rector,  178. 
Gorham  Case,  212. 
Gregory's  Reply  to  Augustine,  25. 
Guilds  under  control  cf  Rector,  266. 


36o  LA  W  OF  THE  CHURCH. 

H 

Henry  VIII.,  Acts  of,  28. 

Holy  Communion,  Office  of,  altered,  83. 

Right  of  Rector  to  repel  from  the,  279. 

Rector  to  give  notice  to  the  Bishop,  280. 
Not  a  judicial  Act,  281,  283. 
Can  only  repel  for  specified  causes,  282. 
In  case  of  personal  wrong,  284. 


Identity  with  English  Church  of  Colonial  Church,  50,  55,  104,  108. 
Of  Church  in  the  States,  51,  58,  61,  64,  81,  86,  104. 
Of  American  Church,  86,  88,  104. 
Illegal  votes  to  be  challenged,  125,  138. 
If  not  challenged,  to  be  received,  138. 
When  election  vitiated  by,  125. 
Incorporation  of  Churches,  117. 
Purpose  of,  117. 
Benefits  of,  118. 
Prerequisite  to,  118. 
Consent  of  Bishop  necessary,  119. 

Of  Convention  where  required,  119, 
Of  Standing  Committee,  119. 
Mode  of  procedure,  119. 
Notice  to  be  g'ven,  120. 
How  given,  120. 
Contents  of  notice,  120. 
Place  of  meeting,  121. 
Hour  of  meeting,  121. 
Meeting  to  be  held  at  hour  named,  121. 
Quorum  of  meeting,  121. 
Officers  of  meeting,  122. 
Presiding  officer,  122. 

To  appoint  tellers,  125. 
To  reject  illegal  votes  if  challenged,  125. 
When  election  not  vitiated  by  illegal  votes,  125. 
To  declare  result,  126. 


INDEX.  361 

Incorporation  of  Churches. 

Scope  of  meeting,  123. 
Qualifications  of  voters,  124. 
Conduct  of  meeting,  125. 
Election  by  ballot,  125. 
Polls,  how  long  to  remain  open,  125. 
Certificate  of  election  to  be  made,  126. 
What  to  contain,  126,  128. 
How  acknowledged,  127. 
To  be  filed,  126. 
Terms  of  officers  elected,  129. 
When  complete,  129. 
Induction.     (See  Office  of  Induction.) 
Inheritance  defined,  18. 

Inhibition,  right  of  Bishop  to  issue  order  of,  220. 
Institution.     (See  Office  of  Institution.) 
Integral  parts  of  a  Vestry,  153,  194  254. 

Features  when  lust,  202. 
Intent  of  American  Church  as  to  continuing  force  of  English  Ec- 
clesiastical Law,  92,  96. 
Interposition  of  civil  tribunals  in  Ecclesiastical  matters,  176,  221, 

250. 

J 
Jennings'  Case,  247. 

Judges  of  Election,  how  appointed,  138. 
Judicial  authority  in  the  Bishop,  171,  184. 

System  of  the  Church,  252. 
Junior  Warden,  301. 
Jurisdiction  in  the  Bishop,  118,  222. 

K 

Keys  of  the  Church,  Rector's  right  to  the,  256,  304. 
Wardens  no  right  to  the,  304. 


Lands,  alienation  of.     (See  Alienation.) 
Law,  Ante- Reformation,  continued  after  Reformation,  30. 
A  subject  of  inheritance,  19. 


362  LA  W  OF  THE  CHURCH. 

Law,  English  Ecclesiastical.     (See  Ecclesiastical  Law.) 

Laws  of  the  Duke  of  Yoi  k,  43,  306. 

Legatine  constitutions,  27,  35. 

Legislation,  Colonial,  43. 

Letter  of  Archbishop  of  Canterbury,  99. 

Letters  Dimissory,  209,  216. 

Form  of,  209. 
Liturgy  of  Church  of  England  retained  by  American  Church,  81,  87. 

89.  94- 
London,  Bishop  of,  Diocesan  of  Colonial  Church,  47,  50,  61. 
Lynd  v.  Menzies  Case,  260. 

M 

Majority  of  votes  necessary  to  elect,  148. 

Of  Vestrymen,  what  constitutes  a,  197. 
Mandamus,  writ  of,  to  compel  Rector  to  call  a  Vestry  meeting,  191. 
To  attend  Vestry  meeiing,  205. 

To  compel  Wardens  and  Vestrymen  to   attend   a  Vestry 
meeting,  203   308. 
Marriage,  English  Canons  on,  95. 
Maryland,  Church  in,  45,  47,  49,  52,  66,  307. 
Massachusetts,  Church  in,  56,  69. 
Meetings  of  Parish.     (See  Parish  meetings.) 

Vestry.     (See  Vestry  meetings.) 
Minister,  when  a  qualified  Minister,  175,  211. 

His  nght  to  be  transferred  to  another  diocese  only  an  Ecclesi- 
astical right,  222. 
Cannot  officiate  as  Rector  without  certificate  of  transfer,  210. 
Without  license  of  Bishop,  210. 
In  a  Parish  without  consent  of  Rector,  267. 
Is  accountable  to  the  Ecclesiastical  authority,  174. 
Vestry  cannot  maintaia  a  deposed,  166. 
Trial  of,  252. 

Election  of,  as  Rector  of  a.     (See  Rector. ) 
Modifications  of  English  Ecclesiastical  Law,  36,  ill. 
Music  of  the  Church  under  exclusive  control  of  the  Rector,  267. 

N 
Name  of  Corporation,  how  changed,  151. 


INDEX.  363 

Name  of  Induction  changed  to  Institution,  233. 

New  Jersey,  Church  in,  56,  60. 

New  York,  Church  in,  43,  53,  306. 

Nicene  Creed,  74. 

Notice  of  Annual  Parish  Meeting,  131. 

What  it  must  contain,  131. 
How  given,  132. 
Object  of,  132. 
Meeting  to  incorporate  a  Church,  120. 
What  it  must  contain,  120. 
How  given,  120. 
Special  Parish  meeting,  150,  186. 
Vestry  meetings,  iqi. 
How  given,  191. 
Object  of,  193. 
Time  of,  191. 
Number  of  Vestrymen,  how  changed,  187. 

Resolution  of  Vestry  to  be  submitted  to  Parish 
meeting,  150,  188. 

O 

Oath  of  office  of  Wardens  and  Vestrymen,  147. 

Object  of  notice  of  Parish  and  Vestry  meetings,  132,  193. 

Office  of  Induction  in  Church  of  England,  224,  227,  237,  239, 

Colonial  Church,  224,  228. 

American  Church,  229. 

Its  meaning  and  effect,  225,  227. 

Intent  of  Church  in  setting  it  forth,  229. 

Name  changed  to  Institution,  233. 

Intent  of  Church  in  change  of  name,  234. 
Institution,  173,  184,  223. 

Similar  to  English  Office  of  Induction,  224,  237,  257. 

Same  as  former  Office  of  Induction,  233. 

Consequences  that  follow  from  its  use,  236. 

Confers  no  new  right  on  a  Rector,  224,  240,  259. 

Why  not  more  generally  used,  239. 
Wardens  and  Vestrymen,  term  of,  129. 
Officer,  Presiding.      (See  Presiding  Officer.) 


364  LA  W  OF  THE  CHURCH. 

Officers  of  meeting  of  incorporation,  122. 

Parish  meetings,  122,  138. 
Organ  under  control  of  the  Rector,  274. 
Organist,  right  of  Rector  to  appoint,  270. 

Vest'ies,  rights  in  appointment  of,  270. 

Under  control  of  the  Rector,  267,  270. 
Ornaments  of  the  Church  under  control  of  Rector,  275. 

When  permanently  placed,  Church  goods,  278. 

The  Bishop's  power  in  the  matter,  277. 

The  Vestry's  power  in  the  matter,  277. 

Wardens  have  no  power  over  the,  276. 


Parish,  annual  meeting  of,  131. 
Notice  of,  131. 
Contents  of,  131. 
How  given,  132. 
Its  object,  132. 
Purpose  of,  132. 
Place  of,  133. 
When  illegal,  131. 

Questions  that  may  be  considered  at,  133. 
Quorum  at,  134. 
Presiding  officer  at,  135,  255. 

To  appoint  tellers,  125,  138. 
When  to  appoint  judges  of  elections,  138. 
When  to  reject  illegal  votes,  138. 
The  returning  officer,  139. 
Qualifications  of  voters  at,  139. 
Proceedings  to  be  recorded,  139. 
Qualifications  of  Wardens  and  Vestrymen,  126,  145. 
Certificate  of  election,  148. 

When  to  be  recorded,  148. 
Special  meetings  of,  149,  186. 
Name,  how  changed,  151. 

Meeting  to  incorporate.     (See  incorporation  of  Churches.) 
Parishioners,  consent  to  the  alienation  of  Church  realty,  150,  159. 
Not  cestuz's  que  it  us/,  1 59. 


INDEX.  365 

Parishioner's  right  to  a  seat  in  the  Parish  Church,  293. 
Pennsylvania,  the  Church  in,  53, 68. 
Pews,  title  to,  in  corporation,  164. 

Under  control  of  the  Vestry,  155,  164. 
Pew  holder  has  only  a  right  of  occupancy,  164. 
May  maintain  action  against  intruder,  165. 
Length  of  time  rented,  164. 
Deed  necessary  to  pass  title,  164. 
Plurality  of  votes  does  not  elect,  148. 
Polls,  how  long  to  remain  open,  125. 

Powers  of  the  Deputies  to  General  Convention  of  1789,75. 
Rector.      (See  Rector.) 
Vestry.      (See  Vestry.) 
Wardens.      (See  Wardens.) 
Prayer  Book  of  Church  of  England,  81,  94. 

Alterations  of,  by  American  Church,  71,  82. 
Preface  of,  83,  92,  103. 
Revision  of,  80. 
Presiding  Officer  of  Parish  Meetings,  the  Rector,  135,  255. 
To  appoint  tellers,  125,  138. 
When  to  appoint  judges  of  election,  138. 
To  decide  as  to  qualifications  of  voters,  138,  255. 
To  reject  illegal  votes,  125,  138. 
To  declare  result,  126. 
The  returning  officer,  139. 
To  sign  certificate,  149. 
When  a  Warden  may  be,  138. 
Vestry  meetings.      (See  Vestry  meetings.) 
Principles  of  the  Church  of  England,  171. 

The  Saxon  Church,  26. 
Property  of  the  Church.     (See  Church  property.) 
Proposed  Book,  71,  81,  97. 

Proposition,  Statement  of  an  undeniable,  58,  104. 
Provincial  Constitutions,  27,  35. 
Provoost,  Consecration  of  Bishop,  74. 

Q 

Qualifications  of  Delegates  to  Diocesan  Conventions,  149. 
Voters,  124,  139. 


366  LAW  OF  THE  CHURCH. 

Qualifications  of  Voters,  Vestry  cannot  alter,  167. 

Vestrymen,  126,  145,  307. 

Wardens,  126,  145,299. 
Qualified  Minister,  What  is  a,  211,  213. 

Right  of  Bishop  to  be  satisfied  that  a  Minister  is  a,  175, 

211,  213,  219. 

Voters  eligible  for  office  of  Vestryman,  146. 
Questions  that  may  be  considered  at  meeting  of  Incorporation,  123. 

Annual  Parish  meeting,  133. 
Quorum  at  meeting  of  Incorporation,  121. 
Annual  Parish  meeting,  134. 
Vestry  meetings,  193,  202,  254. 

Necessary  for  transaction  of  business,  161,  202. 
Withdrawal  of  member  cannot  destroy,  198,  203. 

R 

Realty.  (See  Church  property.) 
Record  Commission  of  1821,  25. 
Rector,  Call  and  election  of,  168,  207. 

Vestry  have  the  power  to  elect,  168,  207. 

Not  an  exclusive  power,  169  178,  207,  219. 
To  give  notice  of  election  to  the  Bishop,  208. 
Notice  to  be  recorded,  208. 
Form  of  notice,  208. 
When  Bishop  may  decline  to  transmit  notice  for  record,  215. 
Call  should  be  in  writing,  179,  207. 

When  complete,  207. 
Consent  of  Bishop  necessary  to  make  election   and  call  com- 
plete, 169,  177,  207,  213,  216,  219,221. 
Letter  Dimissory,  209. 
Form  of,  209. 

Void  if  not  presented  in  six  months,  209. 
Duty  of  Bishop  to  receive,  209. 

Exception  in  case  of  rumors  affecting  character,  209. 
Other  exceptions,  211. 
Canon  relating  thereto  considered,  210. 
Certificate  of  transfer  to  be  given,  210. 


INDEX.  367 

Certificate  of  Transfer  of  Rector,  Form  of,  210. 

Cannot  officiate  as  Rector  until  received,  210. 

Right  of  transfer  only  an  Ecclesiastical  right,  222. 
When  date  of  canonical  residence  begins,  210. 
Institution  of,  223. 

Its  effect,  224,  236,  240. 

Confers  nonevv  rights  upon  a,  224,  240,  259. 
Receives  his  powers  from  the  Bishop,  173,  184. 
Called  for  l.fe,  179  240,  243. 

Cannot  resign  without  consent  of  Parish,  179,  236,  241,  245. 
How  dismissed,  179,  236,  241. 
Vestry  cannot  dismiss,  179,  203,  240,  245. 

Nor  investigate  charge-,  203. 

Nor  reduce  his  salary,  179,  203.  243. 
B'shop  may  dismiss,  241. 

Has  a  right  to  a  hearing  before  dismissal,  245,  250. 
Discussion  of  canons  in  re  dissolution  of  Rectorship,  124. 
An  integral  part  of  the  Vestry,  153,  194,  254. 
Has  the  right  to  call  Parish  and  Vestry  meetings,  190,  254. 

Duty  to  call  such  meetings,  191,  254. 
When  he  may  be  compelled  to  oil  such  meetings,  191. 

Duty  to  attend,  205. 
The  presiding  officer  at  all  meetings,  122,  135,  197,  255. 
Must  be  present  to  render  meeting  valid,  193,  196,  254. 

When  meeting  legal  without.  204. 
Cannot  destroy  quorum  of  meeting  by  withdrawal,  198,  203. 

Adjourn  meeting  on  his  own  motion,  198. 
His  right  to  decide  as  to  qualifications  of  voters,  255. 
To  appoint  tellers,  125,  138. 

Judges  of  election,  138. 
The  returning  officer,  139. 
Has  a  right  to  vote  at  Parish  meetings,  255. 
Vestry  meetings,  255. 

To  give  the  casting  vote  in  case  of  a  tie,  199,  255. 
To  submit  to  the  meeting  all  questions  presented,  201. 

Exceptions,  201. 
May  sue  out  writ  of  mandamus  to  compel  a  Vestryman  to 
attend  Vestry  meeting,  203.  308. 


368  LA  W  OF  THE  CHURCH. 

Rector  has  exclusive  control  over  spiritualities  of  a  Parish, 

i 55,  264. 

Services  of  the  Church,  264,  308. 

Sunday-school,  266. 

Guilds,  etc.,  266. 

Music  of  the  Church,  180,  267. 

The  organ,  267,  274. 

The  Church  edifice,    162,  236,  238,  256,  258, 

262,  304. 
Has  the  right  of  freehold  in  realty  of  the  Church,  183,  257. 
To  the  keys  of  the  Church  buildings,  162,  256,  334. 
Of  control  over  all  buildings  used  for  Church  purposes, 

162,  163,  264,  304. 
To  forbid  a  Minister  from  officiating  in  his  Parish, 

267,  286. 
To  appoint  organist  and  members  of  the  Choir,  179,  270. 
To  determine  as  to  character  of  Choir,  181,  274. 
To  control  the  ornaments  of  the  Church,  275,  277. 
To  appoint  assistant  Minister,  285. 
To  repel  from  the  Holy  Communion,  279. 
But  must  give  notice  to  the  Bishop,  280. 
Not  a  judicial  act,  281,  283. 
Can  only  repel  for  specified  causes,  282. 
In  case  of  personal  wrong,  284. 
Must  give  Wardens  access  to  Church,  304. 
Church  property  cannot  be  alienated  without  consent  of,  182. 

Nor  in  his  absence,  204. 
Has  no  power  to  incur  debts  binding  on  the  Parish,  167. 
No  longer  Rector  if  deposed,  176. 
Duties  of  a,  286. 

S 

Salary  of  Rector  cannot  be  reduced  by  the  Vestry,  179,  203,  243. 

A  valuable  property  right,  179,  244. 
Saxon  Church,  principles  of,  26. 
Seabury,  Consecration  of  Bishop,  59,  74. 

His  assent  to  Constitution  and  Canons  of  1789,  77. 
Seal,  Vestry  may  make  and  use  a  common,  156. 
Select  Vestry  in  the  English  Church,  306. 


INDEX.  369 

Senior  Warden,  301. 

Sexton  when  not  a  regular  contributor,  144. 
Special  Parish  meeting,  149,  186. 
Notice,  how  given,  150,  186. 

What  it  must  state,  151,  186. 
How  conducted,  151,  186. 
S.  P.  G.  in  Foreign  Parts,  46,  48. 
South  Carolina,  the  Church  in,  44,  48,  53. 
Spiritual  affairs  of  a  Parish  under  control  of  Rector,  155,  264. 
Standing  Committee,  consent  of,  to  alienation  of  Church  realty, 

159. 
Consent  necessary  to  incorporation  of  a  Church,  118. 
States,  the  Church  of  England  in  the,  51,  57,  64. 
Identity  of  the  Church  in  the,  57,  61,  86,  104. 
Action  of  the  Churches  in  the,  59,  64. 
Statute  Law  of  England  part  of  Colonial  Common  Law,  17,  21, 

40,  103. 
Rule  as  to  the  interpretation  of,  212,  218. 
Subscriptions  for  religious  purposes,  Vestry  may  compel  payment 

of,  166. 
Sunday  schools  under  exclusive  control  of  the  Rector,  266. 
Synod  of  British  Bishops,  25. 

T 

Tellers  of  Election,  to  be  appointed,  125,  138. 
Terms  of  office  of  Wardens  and  Vestrymen,  129. 
Time,  polls  to  be  kept  open,  125. 
Title  to  Church  property  in  the  Vestry,  157. 

How  impaired,  160. 
Toleration  Act,  44. 
Transition  period  of  the  Church,  64. 
Trial  of  a  Minister,  252. 
Trustees,  Wardens  and  Vestrymen  as,  119,  154,  237. 

Must  act  in  their  corporate  capacity,  161,  307. 

No  individual  authority  to  bind  corporation,  161,  307. 

V 
Vacancies  in  a  Vestry,  how  created,  186. 
How  filled,  186. 


370  LA  VV  OF  THE  CHURCH. 

Vestry,  definition  of,  153,  306. 
Name,  how  derived,  306. 
In  the  Colonies,  306. 

American  Church,  1 53. 

On  what  modelled,  153,  306. 
Composed  of  three  integral  parts,  153,  194,  202,  254. 
Corporate  Trustees,  154,  161. 
Can  only  act  in  a  corporate  capacity,  161. 
In  meetings  regularly  called,  i6r. 
Their  powers  stated,  155. 

Special  powers,  1 54. 
Title  to  Church  property  vested  in  the,  1 57. 
Have  custody  of  Church  property  under  the  Rector,  162. 
Their  power  to  alienate  Church  realty,  158,  182,  204. 
To  fix  rental  of  pews,  164. 
To  enforce  payment  of  subscriptions,  166. 
To  contract  debts,  167. 
To  make  and  use  a  common  seal,  1 56. 
To  make  by-laws,  156,  167. 
To  erect  Parish  buildings,  155,  163. 
To  elect  a  Rector,  156,  168,  207. 

Not  an  exclusive  power,  169,  175,  178,  184,  207, 

213,  216,  219. 
To  request  institution  of  a  Rector,  1 56, 
In  appointment  of  organist  and  choir,  179,  182.  270. 

Of  assistant  Minister,  285. 
Regarding  the  ornaments  of  the  Church,  278. 
Over  the  revenues  of  the  Church,  165. 

The  disbursements  of  Church  moneys,  166. 
Have  no  control  over  spiritualities  of  the  Parish,  155,  264,  269. 
Music  of  the  Church,  180,  269. 
Organist  and  choir,  181,  270. 
Rector  integral  part  of,  153,  194,  202,  254. 
Cannot  remove  a  Rector,  179,  203,  240,  245. 
Reduce  Rector's  salary,  179,  203,  243. 
Investigate  charges  against  a  Rector,  203. 
Maintain  a  deposed  Minister,  166. 
Dispose  of  Church  realty  in  absence  of  Rector,  204. 


INDEX.  371 

Vestry  cannot  divert  Church  property  to  other  uses,  160,  166. 

Alter  qualifications  of  voters,  167. 
Vacancies,  how  created,  186. 

How  filled,  149,  186, 
Definition  of  a  major  part  of,  303. 
Duties  of  a,  156,  164. 

To  keep  Chuich  property  in  good  order,  163. 
To  give  notice  to  Bishop  of  election  of  a  Rector,  208. 
Vestry  Meetings,  how  called,  190,  192. 
Notice  of,  191,  193. 
How  given,  192. 
When  legal  without  notice,  193. 
Right  of  Rector  to  call,  190,  254. 
To  preside,  197,  255. 

To  vote  and  give  the  casting  vote,  199,  255. 
No  right  to  adjourn  meeting,  198. 
When  Wardens  may  call  a,  190,  254,  302. 

Vestrymen  mpy  call  a,  190,  254. 
Quorum  at,  193. 

Necessary  for  transaction  of  business,  202. 
Presence  of  Rector  necessary,  193,  196,  254. 
When  may  be  compelled,  205. 
When  legal  without  Rector,  204. 
Majority  of  Vestrymen  necessary,  197,  202. 
Duty  of  president  to  submit  questions  presented,  201. 
Of  members  to  attend,  203,  308. 
Mandamus  will  lie  to  compel  attendance,  203,  308. 
Conduct  of  business  at,  202. 
Vestrymen,  election  of,  how  conducted,  125,  132. 
Qualifications  of,  126,  146,  307. 
Certificate  of  election  of,  148. 
Oath  of  office,  where  required,  147. 
Terms  of  office  of,  1 29. 
May  call  a  Vestry  meeting,  when,  190,  254. 
When  presiding  officer  at  Parish  meetings,  138. 
Have  no  individual  powers,  16 1,  307. 
Excep'ion,  307. 
No  control  over  services  of  the  Church,  265,  308. 


372  LA  W  OF  THE  CHURCH. 

Vestrymen  cannot  resign  without  consent  of  Vestry,  186. 

Cannot  destroy  quorum  at  meeting  by  withdrawal,  198,  203. 
Number,  how  changed,  150,  187. 

Certificate  of  change,  to  be  made,  188. 
To  be  filed,  188. 
May  be  compelled  to  attend  Vestry  meetings,  203,  308. 
Duties  of,  308. 
Virginia,  the  Church  in,  43,  52,  228. 
Vote,  to  be  received  unless  challenged,  138. 
If  illegal,  will  not  vitiate  election,  when,  138. 
Majority  necessary  to  elect,  148. 
Voters,  qualifications  of,  124,  139,  144. 
Regular  attendants,  140. 
Contributors,  142. 
W 

Wardens  in  the  Church  of  England,  289. 
Office  of  ancient  date,  290. 
Duties  in  Church  of  England,  291. 

Same  in  American  Church,  295,  297. 
Qualifications  of,  126,  145,  299. 
How  appointed  or  elected,  133,  146,  299. 
Senior  and  Junior,  301. 
Terms  of  office,  1 29. 
Certificate  of  election,  148. 

Filing  of,  148. 
When  Vestry  meetings  may  be  called  by,  190,  254,  302. 
One  must  be  present  to  constitute  legal  Vestry  meeting, 

194.  3°3- 
Duty  to  attend  Vestry  meetings,  203. 
May  be  compelled  to  attend,  203,  308. 
Cannot  destroy  quorum  by  withdrawal,  199. 

Resign  without  consent  of  Vestry,  186. 
Have  custody  of  the  Church  under  the  Rector,  256,  304. 

No  right  to  the  keys  of  the  Church,  257,  304. 

No  control  over  the  services  of  the  Church,  265. 
Authority  subordinate  to  the  Rector's,  162. 
To  give  Certificate  to  communicants  where  no  Rector,  299. 


INDEX.  373 

Wardens  to  collect  the  alms  of  the  congregation,  299. 

To  give  notice  to  Bishop  of  election  of  Rector,  299. 
Form  of  notice,  208. 

Must  act  together,  302. 

Duties  of,  297. 
White,  consecration  of  Bishop,  74. 


York,  address  to  the  Archbishop  of,  59. 
Laws  of  the  Duke  of,  43,  306. 

And  Canterbury,  Act  of  Convention  of  1786  sent  to  the  Arch- 
bishops of,  100. 

Address  sent  by  Convention  of  1785  to,  72. 

Of  1786  to,  73. 
Reply  thereto  by  the  Archbishops  of,  97. 


INDEX   TO   APPENDICES. 

Form  of  Notice  of  meeting  to  incorporate  a  Church 321 

"       Notice  of  annual  election 323 

"      Certificate  of  election  of  Wardens  and  Vestrymen 324 

"      Entry  of  election  in  Book  of  Minutes 324 

"      Certificate  of  Lay  Deputies  to  Diocesan  Conventions.   326 
"      Petition  to  Bishop  and   Standing  Committee  for  per- 
mission to  alienate  real  Church  property 327 

"      Application  to  the  Bishop  for  consent  to  establish  a 

Mission 339 

"      Application  to  the  Bishop  for  consent  to  organize  a 

new   Parish 330 

"      Consent    of    Bishop    and     Standing     Committee    to 

alienation  of  Church  property 331 

"      Notice  of  Organization 331 

"      Notice  of  intention  to  become  a  Postulant 333 

"      Postulant's  application  to  the  Standing  Committee  for 

recommendation  as  a  Candidate  for  Holy  Orders.   334 

"       Certificate  of  Minister  and  Vestry 334 

"       Certificate  to  be  laid  before  Standing  Committee  if  the 

applicant  be  a  Minister  of  another  Christian  body  336 
"      Testimonial   of    recommendation     by    the    Standing 

Committee 336 

"       Candidate's   application  to  the    Standing  Committee 
for  recommendation  to  the  Bishop  for  Ordination 

to  the  Sacred  Order  of  Deacons 337 

"       Certificate  of  a  Presbyter 337 

"      Certificate  of  Minister  and  Vestry 337 

"      Testimonial    of    the    Standing   Committee    (Deacon's 

Orders) 339 

"      Candidate's  application  for  Ordination  to  the   Priest- 
hood   339 

"      Certificate  of  Minister  and  Vestry  (Priest's  Orders). ..  340 
"      Testimonial    of    the    Standing    Committee    (Priest's 

Orders) 341 

"      Notice  to  the  Bishop  of  election  of  a  Rector  or  Assist- 
ant Minister 343 

"      Letter  Dimissory 343 

"      Certificate  of  Transfer 343 

Forms  for  Commendatory  Letters 344 


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